Hindman v. Oregon Short Line Railroad Co.

• Decision Date: 04 March 1918
• Citation: 178 P. 837,32 Idaho 133
• Parties: MARK HINDMAN, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

178 P. 837

32 Idaho 133

MARK HINDMAN, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

March 4, 1918

RAILROADS-RIGHT OF WAY-STATUTORY DUTY TO FENCE-ATTORNEY FEES-POLICE POWER-CONSTITUTIONAL LAW.

1. The statute requiring railroad companies to maintain lawful fences along their rights of way is a police regulation adopted to protect human life and property for the benefit of the general public and not for the sole benefit of adjoining or contiguous land owners.

2. Sec 2818, Rev. Codes, as amended by chapter 223, page 706 Session Laws 1911, providing for the recovery of attorney fees where damages are recovered against a railroad company which has failed to maintain a lawful fence along its right of way as required by sec. 2815, Rev. Codes, is designed not for the purpose of compelling railroad companies to pay their debts, but to compel them to comply with the law requiring them to maintain lawful fences along their rights of way for the public safety and to provide a penalty for the violation of such statutory duty, and is a proper police regulation.

3. Held, that sec. 2818, Rev. Codes, as amended supra, does not deprive railroad companies of their property without due process of law nor deny to them the equal protection of the laws and is not repugnant to the fourteenth amendment to the constitution of the United States.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Action against a railroad company for damages and attorney fees under the statute requiring such companies to maintain lawful fences along their rights of way. Judgment for plaintiff affirmed.

Judgment affirmed. Costs awarded to respondent.

George H. Smith and H. B. Thompson, for Appellant.

The court erred in allowing attorney's fees under the provisions of sec. 2818, Rev. Codes, as amended by chapter 223. Laws 1911. (St. Louis M. & S. Ry. Co. v. Wynne, 224 U.S. 354, 32 S.Ct. 493, 56 L.Ed. 799, 42 L. R. A., N. S., 102; Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S.W. 384, 124 S.W. 764, see, also, Rose's U.S. Notes.)

A statute such as the one in question denies due process and equal protection of the laws. (Chicago M. & St. P. R. Co. v. Polt, 232 U.S. 165, 34 S.Ct. 301, 58 L.Ed. 554; 6 R. C. L. 420, 421; Seaboard Air Line Ry. v. Seegers, 207 U.S. 73, 28 S.Ct. 28, 52 L.Ed. 108, see, also, Rose's U.S. Notes.)

A statute is unconstitutional which allows attorney's fees to a successful litigant of one class and denies them to the opponent, even though successful. (Builders' Supply Depot v. O'Connor, 150 Cal. 265, 119 Am. St. 193, 11 Ann. Cas. 712, 88 P. 982, 17 L. R. A., N. S., 909.)

Under the circumstances of this case the statute now before the court is void for all purposes. (Meyer v. Wells Fargo & Co., 223 U.S. 298, 32 S.Ct. 218, 56 L.Ed. 445; Salt Lake City v. Utah L. & Ry. Co., 45 Utah 50, 142 P. 1067, see, also, Rose's U.S. Notes.)

Ed R. Coulter, for Respondent.

This act of the legislature and the reason for enacting these laws was discussed in Johnson v. Oregon Short Line R. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744.

It is as a police regulation for the benefit of the general public that this legislation was enacted. (Bernardi v. Northern P. Ry. Co., 18 Idaho 76, 108 P. 542, 27 L. R. A., N. S., 796; Yates v. Camas Prairie R. Co., 22 Idaho 802, 128 P. 545; Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909; Minneapolis & St. Louis R. Co. v. Emmons, 149 U.S. 364, 13 S.Ct. 870, 37 L.Ed. 769; Minneapolis & St. L. R. Co. v. Beckwith, 129 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585, see, also, Rose's U.S. Notes.)

This statute does not, in cases where stock is killed on its road, deprive the company of property without due process of law in allowing the owner of the stock to recover damages in excess of the value thereof; nor does it deny to the company equal protection of the laws. (Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463; Clark v. Kansas City, 176 U.S. 114, 20 S.Ct. 284, 44 L.Ed. 392; Fidelity Mutual Life Assn. v. Mettler, 185 U.S. 308, 22 S.Ct. 662, 46 L.Ed. 922; Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Kansas City Southern Ry. Co. v. Anderson, 233 U.S. 325, 34 S.Ct. 599, 58 L.Ed. 983, see, also, Rose's U.S. Notes.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This action was brought by respondent against appellant railroad company to recover damages for the alleged killing by appellant company of a certain bull belonging to respondent at a place where the right of way passes along inclosed lands and cultivated fields. Respondent demanded $ 200 from the company and upon its refusal to pay, brought this action for that amount and for $ 75 attorney fees. The case was tried to a jury and a verdict was returned for respondent awarding him damages in the sum of $ 175. The court entered judgment for this amount and also included in its judgment $ 75 attorney fees. This appeal is from the judgment.

The chief assignment of error is that "The court erred in awarding attorney's fees to the plaintiff, and in entering judgment accordingly." It was stipulated that $ 75 was a reasonable attorney fee provided attorney fees could be lawfully assessed, but appellant objected to the allowance of such fees on the ground that the statute under which they were claimed is unconstitutional in that it denies to appellant the equal protection of the law and deprives it of its property without due process of law. The section of the statute in question is sec. 2818, Rev. Codes, as amended by chap. 223, Session Laws of 1911, which reads as follows:

"Sec. 2818. In all suits under Sec. 2815 of the Revised Codes of Idaho, as amended, aforesaid, if the plaintiff recover any damages he shall also be entitled to recover reasonable attorney's fees, together with his costs of suit."

It is the contention of appellant that this section contravenes the following provisions of the fifth and fourteenth amendments to the constitution of the United States:

"Article V. . . . nor shall any person. . . . be deprived of life, liberty, or property, without due process of law; . . . . "

"Article XIV. . . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Inasmuch as the fifth amendment to the constitution of the United States is a limitation solely upon the powers of the federal government, it can have no application to the section of our statute in question (12 C. J. 1194), and we will confine this portion of the opinion to a consideration of the question presented with reference to the fourteenth amendment.

While it is doubtful whether the complaint is sufficient to tender an issue under the statute requiring railroads to fence, this defect is cured by the allegations in the answer. At any rate, the case was tried upon the theory that the issue raised was under the statute above referred to and this court has recently held that "where both parties to an action try their case upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted." (Brown v. Hardin, 31 Idaho 112, 169 P. 293.)

Furthermore, the jury evidently found, and the finding is abundantly supported by the evidence, that respondent's bull came upon appellant's right of way at a place where the railroad company was required to maintain a lawful fence and where the fence was down. The question is, therefore, squarely presented: Can attorney fees be imposed upon a railroad company under a statute providing for their recovery where, under the facts, it has clearly violated the provision of the statute requiring such companies to maintain a lawful fence along their rights of way?

The answer to this question depends largely upon the purpose of such statute. The authorities, construing similar statutes are conflicting and, as pointed out in the extended note to Builders' Supply Depot v. O'Conner, 17 L.R.A. N.S. 910 , "much of this confusion, however, may be ascribed to attempts upon the part of other courts to follow the apparent changes of position of the United States supreme court on the subject."

We shall not attempt here to review all of the conflicting decisions upon the question involved, but shall confine ourselves to those decisions which, in our opinion, correctly state the law applicable to the situation which is presented by our statute and the facts here in issue. This court has long since...