Perkins v. St. Louis, I.M. & S. Ry. Co.

• Citation: 15 S.W. 320,103 Mo. 52
• Parties: Perkins v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Decision Date: 02 February 1891
• Court: United States State Supreme Court of Missouri

15 S.W. 320

103 Mo. 52

Perkins v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Reversed.

T. J Portis and Silver & Brown for appellant.

(1) First. The burden was on plaintiff of bringing his case clearly within the provisions of the statute, and to make out a prima facie case of recovery. Reynolds v Railroad, 85 Mo. 90; City v. Arnot, 94 Mo. 275. Second. The cow having been found on the outside of the railroad right of way, and it not appearing that she had been run or frightened by a passing train, or that she ran against defendant's fence, the demurrer to the evidence should have been sustained. Third. The cow having been found fastened in the fence on the outside of the right of way, no presumption arises that she was first on the right of way and then, becoming frightened by a passing train, ran against the fence. Fourth. The statute, being in derogation of the common law, must be strictly construed. State v. Clinton, 67 Mo. 380. This is especially so if it is to be regarded as a penal one. Manz v. Railroad, 87 Mo. 278; Jackson v. Railroad, 87 Mo. 422; Parish v. Railroad, 63 Mo. 284; State v. Railroad, 19 Mo. 104. The evidence must be satisfactory, and it ought to be something more than the discovery of a dead cow on the outside of the railroad right of way with one foot fastened in the fence. State v. Hill, 96 Mo. 357. (2) First. The section of the statute giving plaintiff an attorney's fee if he prevails is a special law, and is unconstitutional. Const. of Mo., art. 2, sec. 53; Wilder v. Railroad, 14 W. Rep. (Mich.) 627; Schut v. Railroad, 14 W. Rep. (Mich.) 650; Board of Supervisors v. Cowan, 60 Miss. 876; Ragio v. State, 86 Tenn. 272; Durkee v. Janesville, 28 Wis. 468; Calder v. Bull, 3 Dallas, 387. Second. It is also violative of the provision of the federal constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws. Here particular corporations in a particular set of cases have a burden inflicted upon them to which other litigants are not subjected. Corporations are persons within the equal protection of the law within the constitution. Santa Clara County v. Railroad, 118 U.S. 394.

Moses Whybark for respondent.

The taxation of an attorney's fee as costs is sanctioned in a number of cases. R. S. 1889, secs. 508, 2611, 4981, 5239, 7182, 7681, 7746; State ex rel. v. Railroad, 78 Mo. 575; Treasurer of Asylum v. Douglas, 77 Mo. 647. Costs are governed by statute. What shall be taxed as costs is with the legislature. Waters v. Waters. 49 Mo. 385; State v. Wear, 54 Mo. 531. The constitution does not prohibit the taxation of an attorney's fee as costs. Cass County v. Jack, 49 Mo. 196. The act of 1885 is not special. It relates to a class and not to an individual of that class. State ex rel. v. Tolle, 71 Mo. 645; Humes v. Railroad, 82 Mo. 221.

OPINION

Black, J.

This action was commenced before a justice of the peace. It is alleged in the statement that defendant negligently permitted a gap to remain open in its fence along its right of way; that plaintiff's cow strayed through the gap onto the right of way, and being frightened by a locomotive and train of cars ran against a wire fence and was injured and died.

On trial anew in the circuit court the plaintiff recovered judgment for $ 25, and the court taxed as costs an attorney's fee of $ 15 in favor of plaintiff and against the defendant. The action is based upon the act of March 31, 1885, the first section of which (R. S. 1889, sec. 2612) is as follows:

"Section 1. Whenever any live stock shall go in upon any railroad or its right of way, in this state, and the said railroad is not at such place or places inclosed by a good fence on both sides of said railroad, such as is by law required, and such stock, by being frightened or run by any passing locomotive or train on said railroad, shall be injured or killed by or because of having run against the fence on either side, or into any culvert, bridge, slough or mire, or other object along the line of said road, the railroad company shall pay the owner of any such stock so injured or killed the damage sustained."

The second section, among other things, makes it the duty of the court in all such cases, when the plaintiff shall prevail, to tax a reasonable attorney's fee in favor of the plaintiff to be paid as other costs by the defendant.

The first contention on the part of the appellant is that the second section of the act allowing an attorney's fee to the plaintiff is special legislation, and violates section 53, of article 4, of the constitution. Section 53 contains numerous clauses, and the appellant has not pointed out the one upon which reliance is placed. We presume it must be the clause which declares "that the general assembly shall pass no local or special law * * * granting to any * * * individual any special or exclusive right, privilege or immunity;" or the other clause which provides: "In all other cases where a general law can be made applicable, no local or special law shall be enacted."

There can be no fair claim made that the second section of the act in question is a local law, for it applies throughout the state and to all railroad companies without distinction. Nor can it be said to be a law granting to any individual a special or exclusive right or privilege; for it applies in favor of all persons whose stock is injured or killed in the manner described in the first section. Humes v. Railroad, 82 Mo. 221.

Again, the first section of the act creates a class of statutory causes of action, and the second section applies to that entire class. Had the statute allowed a like attorney's fee in favor of the defendant, in case the plaintiff should not succeed, there would and could, we apprehend, be no claim made that it is special legislation.

Wilder v. Railroad, 70 Mich. 382, 38 N.W. 289, to which we are cited by the appellant, was an action to recover damages for injury to a cow, inflicted by the cars at a point where the railroad was not fenced. The statute allowed the plaintiff an attorney's fee of $ 25, and the court held the law unconstitutional, not because special legislation, nor because it violated any particular clause of the constitution, but on the general ground that the legislature could not give to one party in litigation such privileges as would arm him with special and pecuniary advantages over his antagonist. The fee, it was said, was nothing more nor less than a penalty, which could not be imposed in that way. That ruling was followed in the subsequent cases of Schut v. Railroad, 70 Mich. 433, 38 N.W. 291, and Rinear v. Railroad, 70 Mich. 620, 38 N.W. 599. On the other hand the statute of Illinois allows a reasonable attorney's fee in favor of the plaintiff in this class of cases, and the point was made in Railroad v. Duggan, 109 Ill. 537, that the law was special legislation, because it singled out one class of corporations and attached the liability to one class of cases. The court in substance said that the legislature might well require the fencing of the road as a police regulation, and provide penalties for the non-performance of the statutory duty, and on that ground the law was upheld.

Our statute giving the owner double damages for stock killed where a railroad is not fenced as required by law, has been upheld in several cases on the ground that the law is a police...