Mills v. Lehigh Val. R. Co.

• Decision Date: 18 October 1915
• Docket Number: 1911.
• Citation: 226 F. 812
• Parties: MILLS et al. v. LEHIGH VALLEY R. CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

226 F. 812

MILLS et al. v. LEHIGH VALLEY R. CO. et al.

No. 1911.

United States District Court, E.D. Pennsylvania.

October 18, 1915

Arthur R. Thompson and Frank Van Sant, both of Washington, D.C., and Vivian Frank Gable, of Philadelphia, Pa., for plaintiffs.

Henry S. Drinker, Jr., of Philadelphia, Pa., for defendants.

THOMPSON District Judge.

The petitioners brought suit to enforce an order of the Interstate Commerce Commission for reparation under the provisions of the Act to Regulate Commerce of February 4 1887, c. 104, 24 Stat. 379, as amended, and, the case being tried to a jury, recovered verdict and judgment against the defendants in more than $9,000. Section 16 of the act regulates the procedure in suits to enforce compliance with the orders of the Commission and provides:

'If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit.'

Upon motion of counsel, Judge Holland ordered the allowance of a counsel fee of $1,000 for services before the Interstate Commerce Commission, and a further fee of $1,000 for services in the 'proceedings in this cause.' The defendants excepted to the fee for services before the Interstate Commerce Commission. Thereafter proceedings in error were had before the Circuit Court of Appeals, where the judgment was reversed. Lehigh Valley Railroad Co. v. Clark, 207 F. 717, 125 C.C.A. 235. Upon a writ of error sued out by the plaintiffs, the judgment of the Circuit Court of Appeals was reversed in the Supreme Court. Mills et al. v. Lehigh Valley Railroad Company et al., No. 631, 238 U.S. 473 35 Sup.Ct. 888, 59 L.Ed. 1414, October Term, 1914 (opinion by Mr. Justice Hughes, June 21, 1915). The Supreme Court held that there was error in the allowance of a fee for services before the Commission, as it had held in Meeker v. Lehigh Valley Railroad Company, 236 U.S. 412, 35 Sup.Ct. 328 59 L.Ed. 644. The judgment of the District Court was accordingly modified, by striking out the allowance of $1,000 as attorney's fee for services before the Commission, and, as so modified, affirmed.

The plaintiffs now present a petition for the allowance of an additional sum as attorney's fees for services before the Circuit Court of Appeals and before the Supreme Court, to be taxed under section 16 of the act as a part of the costs of the suit. The allowance is objected to by the defendants upon the ground that the order of Judge Holland allowing a fee of $1,000 for the services in the proceeding in this cause must stand as a final disposition of the matter, because it was not made the subject of exceptions by the plaintiffs, and no further counsel fee was allowed by the Supreme Court.

The provisions of the act require that the fee shall be allowed if the petitioner shall finally prevail. In the status of the case, when the fee of $1,000 was fixed, the petitioner had finally prevailed unless appellate proceedings were had, and for all that...