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

• Decision Date: 02 February 1891
• Parties: PERKINS v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

15 S.W. 320

103 Mo. 52

PERKINS v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 2, 1891.

CONSTITUTIONAL LAW — SPECIAL PRIVILEGES — ATTORNEYS' FEES — FENCES.

1. The provision of Rev. St. Mo. 1889, § 2613, for an attorney's fee as costs in favor of the plaintiff in suits for injury to stock resulting from the failure of a railroad company to fence its track, is a valid exercise of the police power, and is not in conflict with Const. Mo. art. 4, § 53, prohibiting special laws granting exclusive privileges.

2. A railroad was inclosed with a wire fence to within six feet of a bridge abutment. Cattle went in through this opening. The plaintiff's cow came home the last time on Saturday morning. She was not seen again until Sunday morning, when she was found at the bridge dead. Her hind foot was fast in the wire, and she was lying on the outside of the fence. She was not breachy. Stock tracks were found inside of the fence. On Saturday two trains had whistled for stock at that place. Held, that the evidence was not sufficient to sustain a recovery under Rev. St. Mo. 1889, § 2612, providing that when any live-stock shall go on a railroad not inclosed with a good fence, and, by being frightened by a passing train, shall be injured by running against the fence or other object along the railroad, the company shall pay to the owner the damages sustained.

Appeal from circuit court, Bollinger county.

T. J. Portis and Silver & Brown, for appellant. Moses Whybark, for respondent.

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 of 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 (now section 2612, Rev. St. 1889) is as follows: "Section 1. Whenever any livestock 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, (Id. § 2613,) 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 Co., 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. Railway Co., 70 Mich. 382, 38 N. W. Rep. 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...