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constitutional law that a legislature is pre- | 803]; Magoun v. Illinois Trust & Savings sumed to have acted within constitutional Bank, 170 U. S. 283, 300 [42: 1037, 1045]; limits, upon full knowledge of the facts, and Tinsley v. Anderson, 171 U. S. 101 [ante, 91]. with the purpose of promoting the interests In some of them the court was unanimous.[106] of the people as a whole, and courts will not In others it was divided; but the division in lightly hold that an act duly passed by the all of them was, not upon the principle or legislature was one in the enactment of rule of separation, but upon the location of which it has transcended its power. On the the particular case one side or the other of other hand, it is also true that the equal pro- the dividing line. tection guaranteed by the Constitution for- It is the essence of a classification that bids the legislature to select a person, natu- upon the class are cast duties and burdens ral or artificial, and impose upon him or it different from those resting upon the general burdens and liabilities which are not cast public. Thus, when the legislature imposes upon others similarly situated. It cannot on railroad corporations a double liability for pick out one individual, or one corporation, stock killed by passing trains it says, in efand enact that whenever he or it is sued the fect, that if suit be brought against a railjudgment shall be for double damages, or road company for stock killed by one of its subject to an attorney fee in favor of the trains it must enter into the courts under plaintiff, when no other individual or corpo- conditions different from those resting on [105]ration is subjected to the same rule. Neither ordinary suitors. If it is beaten in the suit can it make a classification of individuals or it must pay, not only the damage which it corporations which is purely arbitrary, and has done, but twice that amount. If it sucimpose upon such class special burdens and ceeds, it recovers nothing. On the other liabilities. Even where the selection is not hand, if it should sue an individual for deobviously unreasonable and arbitrary, if the struction of its livestock it could under no discrimination is based upon matters which circumstances recover any more than the have no relation to the object sought to be value of that stock. So that it may be said accomplished, the same conclusion of uncon- that in matter of liability, in case of litistitutionality is affirmed. Yick Wo v. Hop- gation, it is not placed on an equality with kins, supra, forcibly illustrates this. In other corporations and individuals; yet this that case a municipal ordinance of San Fran- court has unanimously said that this differcisco, designed to prevent the Chinese from entiation of liability, this inequality of right carrying on the laundry business, was ad- in the courts, is of no significance upon the judged void. This court looked beyond the question of constitutionality. Indeed, the mere letter of the ordinance to the condition very idea of classification is that of inequalof things as they existed in San Francisco, ity so that it goes without saying that the and saw that under the guise of regulation fact of inequality in no manner determines an arbitrary classification was intended and the matter of constitutionality. accomplished.

Our conclusion in respect to this statute is that, for the reasons above stated, giving full force to its purpose as declared by the supreme court of Kansas, to the presumption which attaches to the action of a legislature that it has full knowledge of the conditions within the state, and intends no arbitrary selection or punishment, but simply seeks to subserve the general interest of the public, it must be sustained, and the judgment of the Supreme Court of Kansas is affirmed.

Mr. Justice Harlan dissenting:

While cases on either side and far away from the dividing line are easy of disposition, the difficulty arises as the statute in question comes near the line of separation. Is the classification or discrimination pre scribed thereby purely arbitrary or has it some basis in that which has a reasonable relation to the object sought to be accomplished? It is not at all to be wondered at that as these doubtful cases come before this court the justices have often divided in opinion. To some the statute presented seemed a mere arbitrary selection; to others it appeared that there was some reasonable basis of classification. Without attempting to cite all the cases it may not be amiss to notice, in addition to those already cited, the following: Missouri v. Lewis, 101 U. S. 22 [25: 989]; Hayes v. Missouri, 120 U. S. 68 [30: 578]; Duncan v. Missouri, 152 U. S. 377, 382 [38: 485, 487]; Marchant v. Pennsylvania R. R. Co. 153 U. S. 380, 389 [38: 751, 756]; Chicago, K. & W. R. R. Co. v. Pontius, 157 U. S. 209 [39: 675]; Lowe v. Kansas, 163 U. S. 81, 88 [41: 78, 81]; Plessy v. Ferguson, 163 U. S. 537 [41: 256]; Cov-negligence of the plaintiff shall be taken into ington & L. Turnpike Co. v. Sandford, 164 consideration." The second and only other U. S. 578, 597 [41: 560,567]; Jones v. Brim, section provides that "if the plaintiff shall 165 U. S. 180 [41: 677]; Western U. Teleg. recover, there shall be allowed him by the Co. v. Indiana, 165 U. S. 304 [41: 725]; Chi- court a reasonable attorney's fee, which shall cago, B. & Q. R. R. Co. v. Chicago, 166 U. S. become a part of the judgment." 226, 257 [41: 979, 992]; Holden v. Hardy, Manifestly, the statute applies only to 169 U. S. 366 [42: 780]; Savings & L. Socie-suits against railroad companies, and only to ty v. Multnomah County, 169 U. S. 421 [42: causes of action arising from fire caused by

174 U. S.

U. S., Book 43.

58

The statute of Kansas, the validity of[107] which is involved in the present case, provides in its first section that in all actions against a railway company to recover damages resulting from fire caused by the operat ing of its road, it shall only be necessary for the plaintiff to establish the fact that the fire complained of "was caused by the operating of said railroad, and the amount of his damages (which proof shall be prima facie evidence of negligence on the part of said railroad): Provided, that in estimating the damages under this act, the contributory

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operating a railroad. It establishes against a defendant railroad company a rule of evidence as to negligence that does not apply in any other suit for damages arising from the negligence of a defendant, whether a corporate or natural person. It does more. It imposes upon the defendant railroad corporation, if unsuccessful in its defense, a burden not imposed upon any other unsuccessful de fendant sued upon a like or upon a different cause of action. That burden is the payment of an attorney's fee as a part of the judgment. Even if it appears that the railway company was not guilty of any negligence whatever or that the plaintiffs were guilty of contributory negligence preventing any recovery in their favor, no such fee nor any sum beyond ordinary costs is taxed against

them.

In Gulf, Colorado, & Santa Fé Railway v. Ellis, 165 U. S. 150 [41: 666], we had before us a statute of Texas declaring, among other things, that any person in that state having "claims for stock killed or injured by the train of any railway company, provided that such claim for stock killed or injured shall be presented to the agent of the company nearest to the point where such stock was killed or injured, against any railroad corporation operating a railroad in this state, and the amount of such claim does not exceed [108]$50, may present the same, verified by his affidavit, for payment to such corporation by filing it with any station agent of such corporation in any county where suit may be instituted for the same, and if, at the expiration of thirty days after such presentation, such claim has not been paid or satisfied, he may immediately institute suit thereon in the proper court; and if he shall finally establish his claim, and obtain judgment for the full amount thereof, as presented for payment to such corporation in such court, or any court to which the suit may have been appealed, he shall be entitled to recover the amount of such claim and all costs of suit, and in addition thereto all reasonable attorney's fees, provided he has an attorney employed in his case, not to exceed $10, to be assessed and awarded by the court or jury trying the issue."

That was an action against the railway company to recover damages for the killing of an animal. Judgment was entered against the company, and it included a special attorney's fee. That judgment was sustained by the state court.

The question to be decided was whether within the meaning of the Fourteenth Amendment and in the cases specified the Texas statute did not deny to a railroad corporation the equal protection of the laws in that it required the corporation, if unsuccessful in the suit, to pay, in addition to the ordinary costs taxable in favor of a successful litigant, a special attorney's fee, but gave it no right if successful to demand a like fee from its adversary.

After observing that only against railway companies and only in certain cases was such exaction made, and considering the statute as a whole, this court said: "It is simply a statute imposing a penalty upon railroad cor

porations for a failure to pay certain debts. No individuals are thus punished and no other corporations. The act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney's fees of the suc cessful plaintiff;*if it terminates in their[109] favor, they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the court upon equal terms. They must pay attorney's fees if wrong; they do not recover any if right; while their adversaries recover if right and pay nothing if wrong. In the suits therefore to which they are parties they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the statute."

Referring to the previous decisions of this court holding that corporations were persons within the meaning of the Fourteenth Amendment of the Constitution of the United States, this court also said: "The rights and securities guaranteed to persons by that instrument cannot be disregarded in respect to the artificial entities called corporations any more than they can be in respect to the individuals who are the equitable owners of the property belonging to such corporations. A state has no more power to deny to corporations the equal protection of the law than it has to individual citizens."

In response to the argument made in that case, that it was competent for the legislature to make a classification of corporations enjoying special privileges, the court said: "That such corporations may be classified for some purposes is unquestioned. The business in which they are engaged is of a peculiarly dangerous nature, and the legislature, in the exercise of its police powers, may justly require many things to be done by them in order to secure life and property. Fencing of railroad tracks, use of safety couplers, and a multitude of other things easily suggest themselves. And any classification for the imposition of such special duties-duties arising out of the particular business in which they are engaged-is a just classification, and not one within the prohibition of the Fourteenth Amendment. Thus it is frequently required that they fence their tracks, and as a penalty for a failure to fence double damages in case of loss are inflicted. Missouri Pacific Railway Co. v. Humes, 115 U. S. 512 [29: 463]. But this and all kindred cases proceed upon the[110] theory of a special duty resting upon railroad corporations by reason the business in which they are engaged-a duty not resting upon others; a duty which can be enforced by the legislature in any proper manner; and whether it enforces it by penalties in the way of fines coming to the state, or by double damages to a party injured, is im

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

railroad.

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

ment.

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

The

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

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