510.

Opinion of the Court.

were indicted for violating the act and upon being arraigned filed a motion to quash the indictment on the ground that the act was unconstitutional and void and in violation of the Constitution of the United States, and particularly the Fifth and Fourteenth Amendments thereof, in that the act abridged privileges and immunities of defendants as citizens of the United States, deprived them of their property without due process of law and denied them the equal protection of the laws. The motion was denied and defendants were put on trial before a jury which specially found that the City of Asheville owned about 16,000 acres of land having an outside boundary of twelve miles and held the land as a watershed; that defendants were owners of standing and fallen timber adjoining the watershed on the north about four miles and within 400 feet of the watershed but did not own the land upon which the timber stood and that the water did not drain from the timber, or the land upon which it stood, on to the watershed. And the jury found all other facts which brought defendants within the provisions of the act and made them violators of it. And the jury found the defendants guilty or not guilty as the court should determine the law to be upon the facts found.

Upon the special verdict the court adjudged defendants guilty and fined each $300 and costs. Upon appeal the Supreme Court of the State affirmed the judgment.

In considering the contention of defendants we may put to one side what property is or what its rights are, in the abstract. It and they necessarily are subject to some exertions of government.

What then is the case? The City of Asheville is the owner of and conducts a reservoir, and it may be presumed that other cities of the State are in like situation, and the State, by the law in question, seeks to protect their watersheds from damage or devastating fires. The purpose is governmental, but it is contended that the regulation of

the statute under review is too distant from the purpose and is simply an arbitrary exercise of power. And this as a certain proposition of law, having no other basis in the record than that the forbidden litter of the cut-down and removed timber is "absolutely harmless" and contains "no element of injury or damage to any one" and cannot "by any possibility be construed into a nuisance." The assertion eludes exact estimation. "Tree-tops, boughs, and laps" left upon the ground may not of themselves be a nuisance; but they may become dry, and the more quickly and certainly so from the denudation of the land of its trees, and therefore become a source of fires and the perils and damage of fires. This was the conclusion of the courts below and, we may suppose, in application to the Asheville watershed. The conclusion is fortified by the judgment of the State expressed in the statute, and, it may be, from experience in the State and certainly from experience in other States, ignorance of which we cannot feign. We are not able, therefore, to yield to the contention of defendants that the statute is not proportionate in its regulation nor that its application to defendants' property is arbitrary and unconstitutional.

Nor do we find illegal discrimination in the statute. The charge is based upon the contention that the statute condemns acts committed by individuals "when if like and similar acts be done by municipalities there is no violation of the statute." Counsel again insists too much upon the abstract. We concede the aphorism upon which counsel relies that "the equal protection of the laws is a pledge of the protection of equal laws." We, on March 24th last, by an almost prescience of the contention now based on it, defined its extent and declared that the Fourteenth Amendment, which is the foundation of the aphorism, does not regard the impracticable, and that distinction may be made by legislation between objects or persons, and that the power of the State "may be

510.

Counsel for Plaintiff in Error.

determined by degrees of evil or exercised in cases where detriment is specially experienced.' Armour & Co. v. North Dakota, 240 U. S. 510, 517." Moreover, we pointed out that "the deference due to the judgment of the legislature on the matter" had "been emphasized again and again. Hebe Co. v. Shaw, 248 U. S. 297, 303." Dominion Hotel v. Arizona, ante, 265.

Necessarily the legislature of the State did not think, and the courts below did not think, that individuals and municipalities stood in the same relation to the evil aimed at or that a public body charged with the care of the interests and welfare of the people would need the same restraint upon its action as an individual, or be induced to detrimental conduct.

Judgment affirmed.

GILLIS, ADMINISTRATRIX OF GILLIS, v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY.

ERROR TO THE SUPERIOR COURT OF THE STATE OF

MASSACHUSETTS.

No. 296. Argued March 26, 27, 1919. Decided April 21, 1919.

In the absence of manifest error, concurrent action of state trial and appellate courts in finding no evidence of defendant's negligence sufficient to go to the jury, in a case under the Federal Employers' Liability Act, will not be reëxamined by this court. 224 Massachusetts, 541, affirmed.

THE case is stated in the opinion.

Mr. James J. McCarthy, with whom Mr. Daniel M. Lyons and Mr. Thomas C. O'Brien were on the brief, for plaintiff in error.

Opinion of the Court.

Mr. John L. Hall for defendant in error.

249 U. S.

MR. JUSTICE MCKENNA delivered the opinion of the

court.

Action under the Employers' Liability statute, 35 Stat. 65. Plaintiff in error's intestate, on November 3, 1912, while in the railroad company's service in interstate commerce, was killed, through the negligence, in whole or in part, it is charged, of one of the company's officers, agents or employees.

The defenses of the company were denial of the declaration and averments that the intestate's injuries and death were due to and caused by his own negligence and be sides "were the result of acts, conditions and circumstances the happening of which was assumed" by him.

The case was tried to a jury. At the conclusion of the testimony, upon motion of defendant and over the objection and exception of plaintiff, the court ruled that upon all of the evidence the plaintiff was not entitled to recover and directed a verdict for defendant. It was stipulated that the case was to be reported for the determination of the full court and that if the ruling and direction should be held to be right, then judgment was to be entered for defendant. "If the case ought to have been submitted to the jury, then judgment is to be entered for the plaintiff in the sum of forty-five hundred ($4500) dollars." The case was so reported. The full court reviewed the testimony quite elaborately and concluded from that review that "the only person who was negligent was the deceased and the judge was right in directing a verdict for the defendant," and cited Great Northern Ry. Co. v. Wiles, 240 U. S. 444.

That case repeated the established principle that when the evidence justifies it it is competent for a court to direct a verdict for a defendant. The principle is not

attacked by plaintiff. The contention, however, is that the courts below, one of which tried the case, were wrong in their estimate of the evidence and that plaintiff was entitled to the judgment of the jury upon it. We are unable to yield to the contention. Nor do we think it necessary to give a review of the evidence. It will be found in the opinion of the court and we have verified its correctness. The case turns, therefore, upon an appreciation of the testimony and admissible inferences therefrom, and even if the conclusions of the courts were more disputable we should have to defer to them. Baltimore & Ohio R. R. Co. v. Whitacre, 242 U. S. 169; Erie R. R. Co. v. Welsh, 242 U. S. 303.

Judgment affirmed.

UNITED RAILROADS OF SAN FRANCISCO v. CITY AND COUNTY OF SAN FRANCISCO ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 282. Argued March 25, 1919. Decided April 21, 1919.

A general law, in force when a street railroad franchise was granted by a city, provided that in no case must two railroad corporations occupy and use the same street for more than five blocks; and the franchise ordinance, referring to the law, expressed a like limitation on the power of the board of supervisors, as to the streets covered by the franchise. Held, that the limitation was not intended to affect the city when constructing a street railroad of its own under a later amendment of the law and of the state constitution. P. 519. Held, further, that the grantee took the risk of this judicial interpretation of its franchise and of the city's railroad being run in the same streets on either side of its own, and that any damage inevitably resulting was not a taking of its property requiring resort to eminent domain. P. 520.