material. It is all done in the exercise of the police power of the state and with a view to enforce just and reasonable police regulations. While this action is for stock killed, the recovery of attorney's fees cannot be sustained upon the theory just suggested. There is no fence law in Texas. The legislature of the state has not deemed it necessary for the protection of life or property to require railroads to fence their tracks, and as no duty is imposed, there can be no penalty for nonperformance. Indeed, the statute does not proceed upon any such theory; it is broader in its scope. Its object is to compel the payment of the several classes of debts named, and was so regarded by the supreme court of the state." Again: "Neither can it be sustained as a proper means of enforcing the payment of small debts and preventing any unnecessary litigation in respect to them, because it does not impose the penalty in all cases where the amount in controversy is within the limit named in the statute. Indeed, the statute arbitrarily singles out one class of debtors and punishes it for a failure to perform certain duties-duties which are equally obligatory upon all debtors; a punishment not visited by reason of the failure to comply with any proper police regulations, or for the protection of the laboring classes or to prevent litigation about trifling matters, or in consequence of any special corporate privileges bestowed by the state. Unless the legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency, this statute cannot be sustained. But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the Fourteenth Amendment forbids this."

[111] *If the opinions in the Ellis Case and in this case be taken together, the state of the law seems to be this:

1. A state may not require a railroad company sued for negligently killing an animal to pay to the plaintiff, in addition to the damages proved and the ordinary costs, a reasonable attorney's fee, when it does not allow the corporation when its defense is sustained to recover a like attorney's fee from the plaintiff.

2. A state may require a railroad company sued for and adjudged liable to damages arising from fire caused by the operation of its road, to pay to the plaintiff, in addition to the damages proved and the ordinary costs, a reasonable attorney's fee, even if it does not allow the corporation when successful in its defense to recover a like attorney's fee from the plaintiff.

The first proposition arises out of a suit brought on account of the killing by the railroad of a colt. The second proposition arises out of a suit brought on account of the destruction of an elevator and the property attached to it by fire caused by operating a


Having assented in the Ellis Case to the first proposition, I cannot give my assent to the suggestion that the second proposition is

consistent with the principles there laid down. Placing the present case beside the former case, I am not astute enough to perceive that the Kansas statute is consistent with the Fourteenth Amendment, if the Texas statute be unconstitutional.

In the former case we held that a railroad corporation, sued for killing an animal, was entitled to enter the courts upon equal terms with the plaintiff, but that that privilege was denied to it when the Texas statute required it to pay a special attorney's fee if wrong, and did not allow it to recover any fee if right in its defense; and yet allowed the plaintiff to recover a special attorney's fee if right, and pay none if wrong. Upon these grounds it was adjudged that the parties did not stand equal before the law, and did not receive its equal protection. In the present case the Kansas statute is held to be constitutional, although the parties in suits embraced by its provisions are[112] not permitted to enter the courts upon equal terms, and although the defendant railroad corporation is not allowed to recover an attorney's fee if right, but must pay one if found to be wrong in its defense; while the plaintiff is exempt from that burden if found to be wrong.

In the former case it was adjudged that a state had no more power to deny to corporations the equal protection of the law than it had to individual citizens. In the present case it is adjudged that in suits against a railroad corporation to recover damages arising from fire caused by the operation of the railroad, a rule of evidence may be applied against the corporation which is not applied in like actions against other corporations or against individuals for the negli gent destruction of property by fire.

In the former case it was held that as the killing of the colt was not attributable to a failure upon the part of the railroad to perform any duty imposed upon it by statute, there could be no penalty for nonperformance. In the present case it is adjudged that the statute may impose a penalty upon the defendant corporation for nonperformance, although the negligence imputed to it was not in violation of any statutory duty.

Suppose the statute in question had been so framed as to give the railroad corporation a special attorney's fee if successful in its defense, but did not allow such a fee to an individual plaintiff when successful. I cannot believe that any court, Federal or state, would hesitate a moment in declaring such an enactment void as denying to the plaintiff the equal protection of the laws. If this be true, it would seem to follow that a statute that accords to the plaintiff rights in courts that are denied to this adversary should not be sustained as consistent with the doctrine of the equal protection of the laws. This conclusion, it seems to me, is inevitable unless the court proceeds upon the theory that a corporate person in a court of justice may be denied the equal protection of the laws when such protection could not be denied under like circumstances to natural persons. But we said in the Ellis* Case that[113]

"a state has no more power to deny to corpo- | ordinary statutory costs of $10 in justice's rations the equal protection of the laws court, but if he succeeds because of the negthan it has to individual citizens," and that ligence of the company, the plaintiff is percorporations are denied a right secured to mitted to tax the $10 and an additional penthem by the Fourteenth Amendment if "they alty of $25; for it is nothing more or less cannot appeal to the courts as other litigants than a penalty. Calling it an 'attorney fee' under like conditions and with like protec- does not change its real nature or effect. It tion." is a punishment to the company, and a reward to the plaintiff, and an incentive to litigation on his part. This inequality and injustice cannot be sustained upon any principle known to the law. It is repugnant to our form of government and out of harmony with the genius of our free institutions. The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist. The genius, the nature and the spirit of our state government amounts to a prohibition of such acts of legislation, and the general principles of law and reason forbid them.' Durkee v. City of Janesville, 28 Wis. 464, 468 [9 Am. Rep. 500]; Calder v. Bull, 3 Dall, 386, 388 [1: 648, 649]. Here the legislature has granted special advantages to one class at the expense and to the detriment of another, and has undertaken to make the courts themselves the active agents in this injustice, and to force them to impose penalties in the disguise of costs upon railroad companies for simply exercising, in certain cases, the common right of every person to make a defense in the courts *when suits are brought against them."[115] These principles were reaffirmed in Lafferty v. Chicago & W. M. Railway Co. 71 Mich. 35, and Grand Rapids Chair Co. v. Runnells, 77 Mich. 104, 111.

There is another aspect in which the Kansas statute may be viewed. Taken in connection with the principles of general law recognized in that state, that statute, although not imposing any special duties upon railroad companies, in effect says to the plaintiffs, Matthews and Trudell, the owners of the elevator property-indeed it says in effect to every individual citizen, and for that matter to every corporation in the state: "If you are sued by a railroad corporation for damage done to its property by fire caused by your negligence or in the use of your property, the recovery against you shall not exceed the damages proved and the ordinary costs of suit. But if your property is destroyed by fire caused by the operation of the railroad belonging to the same corporation, and you succeed in an action brought to recover damages, you may recover, in addition to the damages proved and the ordinary costs of suit, a reasonable attorney's fee; and if you fail in the action no such attorney's fee shall be taxed against you." In my judgment, such discrimination against a litigant is not consistent with the equal protection of the laws secured by the Fourteenth Amend


I submit that any other conclusion is inconsistent with Gulf, Colorado, & Santa Fé Railway v. Ellis, as well as with many other well-considered decisions. A reference to a few adjudged cases will suffice.

The validity of a statute of Alabama requiring a reasonable attorney's fee, not exceeding a named amount, to be taxed as The principles which in my judgment part of the costs in certain actions, was inshould control the determination of cases like volved in South and North Alabama R'd Co. the present one are well stated by the su- v. Morris, 65 Ala, 193, 199. The supreme preme court of Michigan in Wilder v. Chicago court of Alabama, referring to the Four& W. M. Railway Company, 70 Mich. 382. teenth Amendment as well as to the state That case involved the validity of a provision Constitution, said: "The clear legal effect in a statute of that state authorizing an at- of these provisions is to place all persons nattorney's fee of $25 to be taxed against a rail-ural and corporate as near as practicable upon road company against which judgment should be rendered in an action for injuries to stock. The court said: "But the imposing of the attorney fee of $25 as costs cannot be upheld. [114] The legislature cannot make unjust distinctions between classes of suitors without violating the spirit of the Constitution. Corporations have equal rights with natural persons as far as their privileges in the courts are concerned. They can sue and defend in all courts the same as natural persons, and the law must be administered as to them with the same equality and justice which it bestows upon every suitor, and without which the machinery of the law becomes the engine of tyranny. This statute proposes to punish a railroad company for defending a suit brought against it with a penalty of $25 if it fails to successfully maintain its defense. The individual sues for the loss of his cow, and if it is shown that such loss was occasioned by his own neglect, and through no fault of the company, and he thereby loses his suit, the railroad company can recover only the

a basis of equality in the enforcement and defense of their rights in courts of justice in this state, except so far as may be otherwise provided in the Constitution. This right, though subject to legislative regulation, cannot be impaired or destroyed under the guise or device of being regulated. Justice cannot be sold, or denied, by the exaction of a pecuniary consideration for its enjoyment from one, when it is given freely and openhanded to another, without money and without price. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right, by the imposition of arbitrary, unjust, and odious discriminations, perpetrated under color of establishing peculiar rules for a particular occupation. Unequal, partial, and discriminatory legislation, which secures this right to some favored class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spirit


of the foregoing constitutional provisions. if the defendant appeal from any such judgThe section of the Code under con- ment, and the plaintiff on appeal recover a sideration (§ 1715) prescribes a regulation like sum exclusive of interest from the rendiof a peculiar and discriminative character, tion of the judgment before the justice, there in reference to certain appeals from justices shall be included in his costs such additional of the peace. It is not general in its provi- fee not in excess of $15 for his attorney as sions, or applicable to all persons, but it is the court may allow." The supreme court confined to such as own or control railroads of Ohio said: "Under the statute, to entitle only; and it varies from the general law of the plaintiff to have an attorney fee taxed the land, by requiring the unsuccessful ap- against the defendant, he is not required to pellant, in this particular class of cases, to show that the debtor had funds which he wilpay an attorney's tax fee, not to exceed twen- fully or arbitrarily or even carelessly refused [116]ty dollars. A law *which would require all to apply to pay his debt, nor that a vexafarmers who raise cotton to pay such a fee, tious or dilatory defense had been made to in cases where cotton was the subject-matter defeat or delay the judgment. No other of litigation, and the owners of this staple misconduct by the defendant is required than were parties to the suit, would be so dis- such as may be implied from a failure to criminating in its nature as to appear mani- comply with the peremptory written demand festly unconstitutional; and one which made upon him. Whether the debtor intershould confine the tax alone to physicians, or poses or shows a vexatious defense, whether merchants, or ministers of the gospel, would he makes an honest though unsuccessful one, be glaring in its obnoxious repugnancy to or whether he makes none at all, but instead those cardinal principles of free government suffers judgment to be taken against him by which are found incorporated, perhaps, in default, are all equally immaterial; in either the bill of rights of every state Constitution case the statute denounces against him a of the various commonwealths of the Ameri- penalty called an attorney fee if an action can government. We think this section of is brought on the claim and judgment recovthe Code is antagonistic to these provisions ered for the sum demanded. of the state Constitution, and is void. right to protect property is declared as well Durkee v. City of Janesville, 28 Wis. 464 as that justice shall not be denied and every[9 Am. Rep. 500]: Gordon v. Winchester one entitled to equal protection. Judicial Bldg. & Accumulating Fund Association, 12 tribunals are provided for the equal protecBush. 110 [23 Am. Rep. 713]; Greene v. tion of every suitor. The right to retain Briggs, 1 Curt. C. C. 327; Cooley, Const. property already in possession is as sacred as Lim. 3d ed. § 393. The section in question the right to recover it when dispossessed. is also violative of that clause in section 1, The right to defend against an action to rearticle XIV. of the Constitution of the United cover money is as necessary as the right to States, which declares that no state shall defend one brought to recover specific real 'deny to any person within its jurisdiction or personal property. An adverse result in the equal protection of the laws.' This guar- either case deprives the defeated party of anty was said by Justice Bradley in Mis- property." Again: "Upon what principle souri v. Lewis, 101 U. S. 22, 30 [25: 989, can a rule of law rest which permits one par992], to include 'the equal right to resort to ty or class of people to invoke the action of the appropriate courts for redress.' 'It our tribunals of justice at will, while the means, as was further said by the court, other party or another class of citizens does 'that no person or class of persons should be so at the peril of being mulcted in an attor denied the same protection which is enjoyed ney fee if an honest but unsuccessful defense by other persons, or other classes, in the should be interposed? A statute that imsame place and under like circumstances.' poses this restriction upon one citizen o1 [118] The same court, in United States v. Cruik-class of citizens only denies to him or them shank, 92 U. S. 542, 555 [23: 588, 592], per the equal protection of the law." Waite, Ch. J., used the following language in discussing the foregoing constitutional clause: "The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states, and it still remains there.' Ward v. Flood, 48 Cal. 36 [17 Am. Rep. 405]."

Hocking Valley Coal Company v. Rosser, 53 Ohio St. 12, 22-24 [29 L. R. A. 386] involved the validity of a section of the Revised Statutes of Ohio providing that "if the plaintiff in any action for wages recover the sum claimed by him in his bill of particulars, there shall be included in his costs such fee [117]as the court may allow, but not in excess of $5, for his attorney; but no such attorney fee shall be taxed in the costs unless said wages shall have been demanded in writing, and not paid within three days after such demand;

In Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 641, 646, 647, 650-652, which involved the validity of a statute authorizing an attorney's fee to be taxed against the appellant, "whenever an appeal shall be taken from the judgment of any court in any action for damages brought by any citizen of this state against any corporation," the supreme court of Mississippi said: "All litigants, whether plaintiff or defendant, should be regarded with equal favor by the law and be fore the tribunals for administering it, and should have the same right to appeal with others similarly situated. All must have the equal protection of the law and its instrumentalities. The same rule must exist for all in the same circumstances. There may be different rules for appeals and their incidents in different classes of cases, determined by their nature and subjects, but not with respect to the person by or against whom they are instituted. The subjection of

I do not think that the adjudged cases in this court, to which reference has been made, sustain the validity of the statute of Kansas.

every unsuccessful appellant to a charge for | ing of the clause in the Fourteenth Amendthe fee of the attorney for the appellee would ment prohibiting any state from denying to afford no ground for complaint as unequal, any person within its jurisdiction the equal for it would operate on all, and such a rule protection of the laws. Jolliffe v. Brown, 14 for the unsuccessful appellant in certain Wash. 155; Randolph v. Builders and Paintcauses of action, tested by the nature anders Supply Co. 106 Ala. 501; New York Life subject of the actions, will be equally free Ins. Co. v. Smith (Tex. Civ. App.) 41 S. W. from objection on the ground of its discrim- 680; St. Louis, I. M. & S. Ry. Co v. Wil inating character; but to say that where cer-liams, 49 Ark. 492; Denver & R. G. Railway tain persons are plaintiffs and certain per- Co. v. Outcalt, 2 Colo. App. 395; Atchison sons are defendants, the unsuccessful appel- & Neb. R. R. Co. v. Baty, 6 Neb. 37 [29 Am. lant shall be subjected to burdens not im- Rep. 356]; O'Connell v. *Menominee Bay[120] posed on unsuccessful appellants generally, Shore Lumber Co. [113 Mich. 124] 71 N. W. is to deny the equal protection of the law to 449; San Antonio & A. P. Ry. Co. v. Wilson the party thus discriminated against. It is (Tex. App.) 19 S. W. 911; City of Janesville to debar certain persons from prosecuting a v. Carpenter, 77 Wis. 288 [8 L. R. A. 808]; civil cause before the appellate tribunals of Pearson v. City of Portland, 69 Me. 278; this state. It is an unwarrantable interfer-Burrows v. Brooks [113 Mich. 307] 71 N. W. ence with the 'due course of law' prescribed 460; Middleton v. Middleton, 54 N. J. Eq. for litigants generally. . . It is doubtless 692 [36 L. R. A. 221]; State v. Goodwill, 33 true that the act was designed for the relief W. Va. 179 [6 L. R. A. 621]. These adjudiof citizens who became litigants in actions cations rest substantially upon the grounds against corporations, because it applies only indicated by this court in Yick Wo v. Hopwhen a citizen is plaintiff, and it was as-kins, 118 U. S. 356, 369 [30: 220, 226], where sumed that the corporation would be appel- it was said that "the equal protection of the lant, and to avoid discrimination between laws is a pledge of the protection of equal parties to the same action it was made to laws." operate on either party as appellant, but it [119] sometimes occurs, and may very often, that the citizen plaintiff is an appellant, and in such cases the discrimination may operate oppressively on him. The supreme court of In Missouri Pacific Railway Co. v. Humes, Alabama declared its act violative of the 115 U. S. 512, 522 [29: 463, 466], this court Constitution of that state and of the United sustained a statute of Missouri requiring States, because of its unjust discrimination every railroad corporation to erect and mainin establishing peculiar rules for a particu-tain fences and cattle guards on the sides of Ir occupation, i. e., 'such as own or control its roads, and for failure to do so subjectrailroads. Our objection to the act under ing it to liability in double the amount of consideration is broader, as shown above, em- damages occasioned thereby. The court bracing in its scope the right of the citizen said: "The omission to erect and maintain who sues a corporation, for whom we assert such fences and cattle guards in the face of the right to appeal on the same terms grant- the law would justly be deemed gross neglied to the plaintiffs in like cases, i. e., actions gence, and if, in such cases, where injuries for damages against whomsoever brought. to property are committed, something beThe act was intended to deter from the ap-yond compensatory damages may be awarded pellate court corporations against whom to the owner by way of punishment for the judgments should be rendered for damages, company's negligence, the legislature may fix or citizens of this state suing them for dam- the amount or prescribe the limit within ages. It was conceived in hostility to citi- which the jury may exercise their discrezens as plaintiffs or corporations as defend- tion. The additional damages being by way ants in such actions. In either view it is of punishment, it is clear that the amount partial and discriminating against classes of may be thus fixed; and it is not a valid oblitigants, denying them access to the appel-jection that the sufferer instead of the state late courts on the same terms and with the receives them same incidents as other litigants who may be plaintiffs or defendants in actions for damages. It is not applicable to all suitors alike in the class of actions mentioned by it. An act 'which is partial in its operations, intended to affect particular individuals alone or to deprive them of the benefit of the general laws, is unwarranted by the Constitution and is void.' 'A partial law, tending directly or indirectly to deprive a corporation or an individual of rights to property, or to the equal benefits of the general laws of the land, is unconstitutional and void.'"

Cases almost without number could be cited to the same general effect. I refer to the following as bearing more or less upon the general inquiry as to the scope and mean

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The power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion. The statutes of nearly every state of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase *in[121] Imany cases double, in some cases treble, and even quadruple the actual damages. The objection that the statute of Missouri violates the clause of the Fourteenth Amendment. which prohibits a state to deny to any


person within its jurisdiction the equal thorized to procure insurance on the prop-
protection of the laws, is as untenable erty upon the route of its railroad.
It was
as that which we have considered. The there said: "The right of the citizen not to
statute makes no discrimination against have his property burned without compen-
any railroad company in its require sation is no less to be regarded than the
ments. Each company is subject to the right of the corporation to set it on fire. To
same liability, and from each the same se- require the utmost care and diligence of the
curity, by the erection of fences, gates, and railroad corporations in taking precautions
cattle guards, is exacted, when its road against the escape of fire from their engines
passes through, along, or adjoining inclosed might not afford sufficient protection to the
or cultivated fields or uninclosed lands. owners of property in the neighborhood of
There is no evasion of the rule of equality the railroads. When both parties
where all companies are subjected to the equally faultless, the legislature may proper-
same duties and liabilities under similarly consider it to be just that the duty of in-


suring private property against loss or injury caused by the use of dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments. The very statute now in question, which makes the railroad company li able in damages for property so destroyed, gives it, for its protection against such damages, an insurable interest in the property in danger of destruction, and the right to ob

In Missouri P. Railway Co. v. Mackey, 127 U. S. 205, 209 [32: 107, 109], this court held not to be unconstitutional a statute of Kansas making every railroad company liable for all damages done to one of its employees in consequence of any negligence of its agents or by any mismanagement of its engineers or other employee, to any person sustaining such damage. This court said: "Such legislation does not infringe upon the clause of the Fourteenth Amendment requiring equal protection of the laws, because it is special in its character; if in conflict attain insurance thereon in its own behalf; all with that clause, it must be on other grounds. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions."


and it may obtain insurance upon all such
property generally, without specifying any
particular property." Observe, that the Mis-[123]
souri statute gave the railroad company for
its protection against the new liability im-
posed upon it the right to insure the prop-
erty likely to be destroyed by fire.

I do not perceive that the judgment now
In Minneapolis & St. Louis Railway Co. v. rendered finds support in any adjudication
Emmons, 149 U. S. 364, 367 [37: 769, 772], by this court. The above cases proceed upon
the court held to be valid a statute of Min- the general ground that in the exercise of its
nesota requiring railroad companies within police powers a state may by statute impose
a named time to build or cause to be built additional duties upon railroad corporations,
good and sufficient cattle guards at all wagon with penalties for the nonperformance of such
crossings, and good and substantial fences duties, and that such legislation is not, be-
on each side of their respective roads, and cause of its special character, a denial of the
that failure by any company to perform that equal protection of the laws. It is said to be
duty should be deemed an act of negligence, of the essence of classification that "upon
for which it should be liable in treble the the class are cast duties and burdens differ-
amount of damage sustained. This court ent from those resting upon the general pub-
said: "The extent of the obligations and lic." But here the state does not prescribe
[122]duties *required of railroad corporations or any additional duties upon railroad com-
companies by their charters does not create panies in respect of the destruction of prop-
any limitation upon the state against im-erty by fire arising from the operating of
posing all such further duties as may be their roads. It simply imposes a penalty
deemed essential or important for the safety which it does not impose upon other litigants
of the public, the security of passengers and under like circumstances. It only prescribes
employees, or the protection of the property a punishment for assuming to contest a
of adjoining owners. The imposing of prop-claim of a particular kind made against it
er penalties for the enforcement of such ad-
ditional duties is unquestionably within the
police powers of the states. No contract
with any person, individual or corporate, can
impose restrictions upon the power of the
states in this respect."

for damages. The railroad company can escape the punishment only by failing to exercise its privilege of resisting in a court of justice a demand which it deems unjust. Undoubtedly, the state may prescribe new duties for a railroad corporation and impose penalIn St. Louis & San Francisco Railway Co. ties for their nonperformance. But, under v. Mathews, 165 U. S. 1, 26 [41: 611, 621], the guise of exerting its police powers, the this court upheld a statute of Missouri pro-state may not prevent access to the courts viding that every railroad corporation owning and operating a railroad in that state should be responsible in damages to the owner of any property injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon its railroad -the railroad company being, however, au

by all litigants upon equal terms. It may not, to repeat the language of the court in the Ellis Case, “arbitrarily select one corpora tion or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency." Ar

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