Gano v. Minneapolis & St. Louis Railroad Co.

• Decision Date: 17 October 1901
• Parties: DAVID D. GANO et al., Appellant, v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellee
• Court: Iowa Supreme Court

87 N.W. 714

114 Iowa 713

DAVID D. GANO et al., Appellant, v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellee

Supreme Court of Iowa, Des Moines

October 17, 1901

Appeal from Clay District Court.--HON. F. H. HELSELL, Judge.

THIS is a controversy over the right to tax attorney's fees in favor of the landowner in a condemnation proceeding. The trial court refused to tax the fees because of unconstitutionality of the statute authorizing the same, and the landowners appeal.

Reversed.

R. M Bush and Carr & Parker for appellant.

Albert E. Clarke, R. M. Wright and Cory & Bemis for appellees.

We are also favored with a brief on behalf of appellees from Soper Allen & Alexander, who are interested in a like question in another case.

OPINION

DEEMER, J.

The material parts of section 1995 of the Code are as follows: "Any railway corporation organized in this state or chartered by or organized under the laws of the United States, or any state or territory, may take and hold under the provisions of this chapter so much real estate as may be necessary for the erection and construction and convenient use of its railway, and may also take, remove and use for the construction and repair of said railway and its appurtenances, any earth, gravel, stone, timber or other materials on or from the land so taken. The land so taken, otherwise than by the consent of the owners shall not exceed one hundred feet in width except for wood and water stations, except where greater width is necessary for excavation, embankment or depositing waste earth." The chapter fully provides the manner in which the right of eminent domain may be exercised by such railway corporations. Section 1999 provides for the selection by the sheriff of six freeholders, who shall, upon inspection of the real estate, assess the damages in the event the parties cannot agree on the amount thereof. Other sections provide the method and manner of making the assessment. Section 2009 provides that either party may appeal from the assessment made by the sheriff's jury, and section 2007, which is a part of the chapter in which section 1995 is found, reads as follows: "The corporation shall pay all the costs of the assessments made by the commissions and those occasioned by the appeal, including reasonable attorney's fees to be taxed by the court, unless on the trial thereof the same or less amount of damages is awarded than was allowed by the commissioners." It is that portion of section 2007 authorizing the assessment of an attorney's fee which it is claimed is unconstitutional. In the instant case the parties were unable to agree, and a sheriff's jury was summoned under the provisions of the statute above referred to. That jury viewed the premises, and assessed plaintiff's damages at $ 1,400. Thereupon the railway company appealed to the district court, and within a few days thereafter the landowner also appealed. At the hearing in the district court the jury fixed the amount of plaintiff's damages at $ 1,750, and the court ordered that the railway company should pay plaintiff the amount so fixed, and rendered a judgment against it for costs, but refused to tax an attorney's fee, as provided in section 2007. The appeal is from the refusal of the court to tax attorney's fees.

Our constitution provides that "private property shall not be taken for public use without just compensation first being made, or secured to be made, to the owner thereof as soon as the damages shall be assessed by a jury who shall not take into consideration any advantages that may result to the said owner on account of the improvement for which it is taken." Many reasons are assigned for holding the statute in question unconstitutional. Among other things it is said the statute is not uniform in its operation; that it grants landowners immunities from costs that are imposed on railway companies; that it discriminates in favor of one class of litigants and against another; that it is violative of the fourteenth amendment of the federal constitution, in that it deprives railway companies of their property without due process of law, and denies to such companies the equal protection of the law. Much reliance is placed on Gulf C. & S. F. R. Co. v. Ellis, 165 U.S. 150 (17 S.Ct. 255, 41 L.Ed. 666), and other like cases, to which we will hereafter more particularly refer. The main contention, as we understand it, is that the statute is discriminatory in character, denies to railway companies the equal protection of the law, and confers special privileges that are arbitrary in character and unjustifiable. To these points we will now address ourselves.

Statutes allowing plaintiffs only to recover attorney's fees as part of the judgment in particular actions selected by the legislature have been sustained in a great number of cases. See Kansas Pac. R. Co. v. Mower, 16 Kan. 573; Peoria, D. & E. R. Co. v. Duggan, 109 Ill. 537 (50 Am. Rep. 619); Vogel v. Pekoc, 157 Ill. 339 (42 N.E 386); Dow v. Beidelman, 49 Ark. 455 (5 S.W. 718); Perkins v. Railway Co., 103 Mo. 52 (15 S.W. 320); Burlington, C. R. & N. R. Co. v. Dey, 82 Iowa 312, 48 N.W. 98; Wortman v. Kleinschmidt, 12 Mont. 316 (30 P. 280); Gulf C. & S. F. R. Co. v. Ellis, 87 Tex. 19 (26 S.W. 985); Cameron v. Railroad Co., 63 Minn. 384 (65 N.W. 652); Atchison, T. & S. F. Ry. Co. v. Matthews, 174 U.S. 96 (19 S.Ct. 609, 43 L.Ed. 909). In other cases such statutes have been held invalid. Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12 (41 N.E. 263); Wilder v. Railroad Co., 70 Mich. 382 (38 N.W. 289); St. Louis I. M. & S. R. Co. v. Williams, 49 Ark. 492 (5 S.W. 883); Jolliffe v. Brown, 14 Wash. 155 (44 P. 149); Grand Rapids Chair Co. v. Runnels, 77 Mich. 104 (43 N.W. 1006); Railroad Co. v. Morris, 65 Ala. 193; Gulf, C. & S. F. Railway Co. v. Ellis, supra; Railroad Co. v. Moss, 60 Miss. 641; Durkee v. City of Janesville, 28 Wis. 464 (9 Am. Rep. 500). A careful examination of these cases indicates that much depends on the nature of the action and the power that is invoked in the passage of the act. In the Dow Case a statute provided a penalty for overcharges in freight rates, requiring the payment of not less than $ 50 nor more than $ 300 and costs of suit, including a reasonable attorney's fee. It was held that attorney's fees might be included as a part of the penalty for non-compliance with the duty imposed. The law was upheld as a valid exercise of the police power of the state, and not obnoxious as partial or unequal legislation. Perkins' Case involved the constitutionality of a statute providing for attorney's fees in favor of plaintiffs in suits for injury to stock resulting from the failure of a railway to fence its track. The statute was held to be a proper exercise of the police power, and not in conflict with the Missouri constitution prohibiting special laws granting exclusive privileges. The Duggan Case, 109 Ill. 537, is to the same point, and holds the statute valid. The Dey Case also sustains a statute allowing attorney's fees in suits for damages on account of overcharges in freight rates. Ellis' Case, 87 Tex. 19 (26 S.W. 985), is the one appealed to the supreme court of the United States, and there reversed. Wortman's Case sustains a statute providing for an attorney's fee to plaintiff's attorney in actions to enforce mechanics' and certain other liens. Vogel v. Pekoc upholds an act providing for taxing attorney's fees as costs in action by servants for wages which they have previously demanded in writing, against the objection that it was class legislation. Cameron v. Railroad Co. sustains an act allowing the plaintiff reasonable attorney's fees in actions brought under a statute to recover possession of land taken without compensation by a railway company for its right of way. And Judge Brewer, who wrote the opinion in the Ellis Case, finds nothing objectionable in a Kansas statute requiring a reasonable attorney's fee for plaintiff in actions against a railway company for damages from fire caused by the operation of its trains. This statute was held to be a valid exercise of the police power, and not in violation of the fourteenth amendment to the federal constitution. Judge Brewer wrote the opinion in the Ellis Case relied on by appellee, and some of the language of the opinion is quite significant, and we shall have more to say of it hereafter. The Williams Case, 49 Ark. 492 (5 S.W. 883) involved the constitutionality of a statute providing for the assessment of attorney's fees in stock-killing cases on appeal from a board appointed to assess damages in the event the railway company did not recover a more favorable judgment than the award of the board. This act was held invalid largely because in conflict with a provision of the constitution of Arkansas that "every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character. He ought to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformably to the laws." It is said in the opinion: "The legislature has no power to substitute boards of arbitration for courts without the consent of the parties. * * * To make the action of such board obligatory, or impose a penalty for resorting to the courts, would be a denial of the right, or a purchase of justice, and a violation of the constitution." In Wilder's Case an act of the Michigan legislature authorizing an attorney's fee to be taxed in actions for injuries to stock on account of failure of the company to fence was held unconstitutional as being an attempt to grant special advantages to one class at the expense and to the detriment of another. The attorney's fees were held to be a penalty for exercising in certain cases...