the words "on any railroad engaged" in the first clause of the amendatory provision. But for them the true test of the application of that clause to a locomotive, car or similar vehicle would be, as it was under the original act, the use of the vehicle in moving interstate traffic. On the other hand, when they are given their natural signification, as presumptively they should be, the scope of the clause is such that the true test of its application is the use of the vehicle on a railroad which is a highway of interstate commerce, and not its use in moving interstate traffic. And so certain is this that we think there would be no contention to the contrary were it not for the presence in the amendatory provision of the third clause “and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith." In this there is a suggestion that what precedes does not cover the entire field, but at most it is only a suggestion and gives no warrant for disregarding the plain words "on any railroad engaged" in the first clause. True, if they were rejected, the two clauses, in the instance of a train composed of many cars, some moving interstate traffic and others moving intrastate traffic, would by their concurrent operation bring the entire train within the statute. But it is not necessary to reject them to accomplish this result, for the first clause, with those words in it, does even more, that is to say, it embraces every train on a railroad which is a highway of interstate commerce without regard to the class of traffic which the cars are moving. The two clauses are in no wise antagonistic, but, at most only redundant, and we perceive no reason for believing that Congress intended that less than full effect should be given to the more comprehensive one, but, on the contrary, good reason for believing otherwise. As between the two opposing views, one rejecting the words "on any railroad engaged" in the first clause and the other treating the third clause as redundant, the latter is to be preferred, first, because it is

in accord with the manifest purpose, shown throughout the amendatory act, to enlarge the scope of the earlier one and to make it more effective, and, second, because the words which it would be necessary to reject to give effect to the other view were not originally in the amendatory act, but were inserted in it by way of amendment while it was in process of adoption (Cong. Rec., 57th Cong., 1st Sess., vol. 35, pt. 7, p. 7300; Id., 2d sess., vol. 36, pt. 3, p. 2268), thus making it certain that without them the act would not express the will of Congress.

For these reasons it must be held that the original act as enlarged by the amendatory one is intended to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce.

We come then to the question whether these acts are within the power of Congress under the commerce clause of the Constitution, considering that they are not confined to vehicles used in moving interstate traffic, but embrace vehicles used in moving intrastate traffic. The answer to this question depends upon another, which is, Is there a real or substantial relation or connection between what is required by these acts in respect of vehicles used in moving intrastate traffic and the object which the acts obviously are designed to attain, namely, the safety of interstate commerce and of those who are employed in its movement? Or, stating it in another way. Is there such a close or direct relation or connection between the two classes of traffic, when moving over the same railroad, as to make it certain that the safety of the interstate traffic and of those who are employed in its movement will be promoted in a real or substantial sense by applying the requirements of these acts to vehicles used in moving the traffic which is intrastate as well as to those used in moving that which is interstate? If the answer to this question, as doubly stated, be in the affirmative, then the principal question must be answered in the same way. And this is

so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate com

merce.

Speaking only of railroads which are highways of both interstate and intrastate commerce, these things are of common knowledge: Both classes of traffic are at times carried in the same car and when this is not the case the cars in which they are carried are frequently commingled in the same train and in the switching and other movements at terminals. Cars are seldom set apart for exclusive use in moving either class of traffic, but generally are used interchangeably in moving both; and the situation is much the same with trainmen, switchmen and like employés, for they usually, if not necessarily, have to do with both classes of traffic. Besides, the several trains on the same railroad are not independent in point of movement and safety, but are interdependent, for whatever brings delay or disaster to one, or results in disabling one of its operatives, is calculated to impede the progress and imperil the safety of other trains. And so the absence of appropriate safety appliances from any part of any train is a menace not only to that train but to others.

These practical considerations make it plain, as we think, that the questions before stated must be answered in the affirmative.

Affirmed.

Argument for Plaintiff in Error.

222 U.S.

FINLEY v. PEOPLE OF THE STATE OF
CALIFORNIA.

ERROR TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA.

No. 15. Argued October 26, 1911.-Decided November 6, 1911.

Whether a state statute denies equal protection of the laws by reason

of classification depends upon whether there is a basis for the classification.

There is a proper basis for classification of punishment for crimes between convicts serving life terms in the state prison and convicts serving lesser terms.

Section 246 of the Penal Code of California inflicting the death penalty for assaults with intent to kill committed by life term convicts in the state prison is not unconstitutional under the equal protection clause of the Fourteenth Amendment because its provisions are not applicable to convicts serving lesser terms.

153 California, 59, affirmed.

THE facts, which involve the constitutionality under the equal protection clause of the Fourteenth Amendment of § 246 of the Penal Code of the State of California, are stated in the opinion.

Mr. C. C. Calhoun, Mr. James M. Sharp, Mr. H. G. W. Dinkelspiel, Mr. Samuel T. Bush and Mr. G. C. Ringolsky for plaintiff in error, submitted:

While the law with reference to classification within the constitutional meaning is well settled, the application thereof gives rise to question. Yick Wo v. Hopkins, 118 U. S. 356; Barbier v. Connolly, 113 U. S. 27; Board of Education v. Alliance Assurance Co., 159 Fed. Rep. 994.

It is necessary to ascertain the reason and purpose of the statute to determine its validity. The rapid and be

222 U.S.

Argument for Plaintiff in Error.

neficent advance of penal reform necessitates the conclusion that no trivial reason prompted or should be held to have prompted the statute. Boies, Science of Penology, 119.

The legislature did not base the statute upon the ground that life termers are more dangerous than other prisoners. People v. Finley, 153 California, 59, contra.

The term of imprisonment is determined by influences other than personal character. Drahms, The Criminal, 364; Ex parte Mallon, 16 Idaho, 737; 102 Pac. Rep. 374. Life termers are not desperate because of the loss of all hope of freedom, since the parole law of California supplies ample relief.

Permanent loss of civil rights as compared with a temporary loss thereof does not make the life termer more dangerous than his fellow convict.

A law predicated on length of term is unconstitutional. Ex parte Mallon, 16 Idaho, 737; 102 Pac. Rep. 374; State v. Lewin, 53 Kansas, 679; 37 Pac. Rep. 168.

The only possible reason for the enactment of the statute is a seeming lack of adequate punishment for life termers.

The classification necessary to support a statute must be based upon real differences in the situation, condition and tendencies of things. Ho Ah Kow v. Nunan, 5 Sawyer, 552; Gulf &c. Ry. Co. v. Ellis, 165 U. S. 150; Cotting v. Kansas City Stock Yards, 183 U. S. 79; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Board of Education v. Alliance Assurance Co., 159 Fed. Rep. 994; State v. Loomis, 115 Missouri, 307; 22 S. W. Rep. 350; State v. Miksicek, 125 S. W. Rep. 506 (Missouri, 1910); State v. Mitchell, 97 Maine, 66, 73; State v. Julow, 129 Missouri, 163;31 S. W. Rep. 781, 783; State v. Thomas, 138 Missouri, 95; 39 S. W. Rep. 481; Murray v. Board of Commissioners, 81 Minnesota, 359; 84 N. W. Rep. 103; Nichols v. Walter, 37 Minnesota, 264; 33 N. W. Rep. 800; People v. Van