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

• Decision Date: 05 November 1887
• Parties: ST. L., I. M. & S. RY. v. WILLIAMS
• Court: Arkansas Supreme Court

5 S.W. 883

49 Ark. 492

ST. L., I. M. & S. RY. v. WILLIAMS

Supreme Court of Arkansas

November 5, 1887

APPEAL from Saline Circuit Court, J. B. WOOD, Judge.

Reversed in part and affirmed in part.

Dodge & Johnson for appellant.

1. The act authorizing the allowance of attorney's fees is in violation of the Constitution of Arkansas, and the Fifth and Fourteenth Amendments to the Constitution of tthe United States.

It provides for a board of arbitration, and inflicts a penalty for appealing to the courts. Art. 2, sec. 13.

2. It conflicts with section 21, article 2. It applies to only one class of persons and only to one class of acts. 58 Ala. 594; 4 Whart., 518 to 581; 65 Ala. 199; 28 Wisc., 464; 12 Bush 210; 1 Curtis, 327; Cooley Const. Lim. (3d ed.), 293; 8 Ind 217; 10 Ind. 292; 6 Brown, Neb. 37; 2 Yerger, 554; 16 Pa 266; 19 A & E. R. Cases, 436; 20 id., 555.

3. It violates section 7, article 2, Constitution. 28 Ark. 461; 32 id., 24; 8 id., 446; 16 id., 384.

4. It violates article 2, sections 3 and 18, Constitution Arkansas, and section 1 of Fourteenth Amendment, Constitution of the United States. 101 U.S. 30; 118 U.S. 396; 4 Otto, 544; 48 Cal. 50; 5 id., 74; 100 U.S. 345; 55 Cal. 21; 51 Pa. 412; 1 Curt., 311.

W. S. McCain and George H. Sanders for appellee.

The allowance of an attorney's fee, under the act, can be sustained as constitutional, on two grounds:

1. It is a penalty, and attaches itself to the tort, and comes strictly within the police power of the State to prevent injury to persons and property.

2. The allowance is a part of the real and bona fide costs and expenses of the litigation, and an attorney being a recognized officer of the court, and legitimately engaged for the recovery of a legal right, the Legislature has as much right to tax a fee for him as cost, as of any other officer of court. Rev. St. U.S. sec. 824; Mansf. Dig., secs. 5215, 5221; 113 U.S. 703; 115 id., 523; 18 Kan. 573; 25 id., 561; 30 id., 41; 109 Ill. 537; Thom. on Neg., 539; Thorp v. R. R., 27 Vt.; 22 A. & E. R. Cases, 564; 115 U.S. 112.

OPINION

BATTLE, J.

Appellee sued appellant for the value of two oxen killed by its train, and recovered judgment for his damages and twenty dollars for an attorney's fee. The only error complained of here is the allowance of an attorney's fee, which was allowed by authority of an act entitled "an act to provide for the speedy settlement of claims for stock killed or injured by railroads," which reads as follows:

"SECTION 1. That whenever any stock, such as horses, hogs, cattle, sheep, etc., are killed or injured by railroad trains running in this State, either the owner of such stock, or the person having a special ownership therein, or the railroad company or person operating such railroad, shall, by notice served upon the opposite party, demand an appraisement; such notice, if given to the railroad company, shall be sufficient if served upon the station agent nearest the place where the injury occurred, or upon any station agent in the county. In the notice the party shall name a person, a citizen of the county in which the injury occurred, as an appraiser; the other shall, within ten days, select another citizen of the county, and shall notify the opposite party of the person selected. If the party so notified shall neglect for ten days to appoint an appraiser, then the person named in such first notice shall select some citizen of the county to act with him as appraiser, and in case of disagreement they shall select an umpire. They shall be sworn to truly and without favor assess the damages, and any two of them agreeing, shall reduce their finding to writing, sign it in duplicate, and deliver one copy to the owner of such stock, and the other to the depot agent of the railroad company.

"SEC. 2. If the person or company operating such railroad, shall, within thirty days after the delivery of such appraisement to their agent, pay the amount assessed as damages, such payment shall be in full satisfaction of all demands for the killing and injury of such stock, and they shall be released from further liability therefor; but in case they neglect or refuse to make such payment within thirty days, and the person owning such stock shall sue for damages done to such stock, and recover, the court trying the cause, shall assess, in addition to the amount assessed as damages for the killing or injuring of such stock, a reasonable attorney's fee for the plaintiff; and in any such court to which the appeal may be taken, the court shall allow a reasonable attorney's fee, to be taxed and collected as other costs in the case in such court; but, if such company or person tender such owner of such stock the full amount of such appraisement within thirty days, and the same be refused, and he shall institute suit for damages to such stock, unless such person recover in such suit a greater amount than that tendered, the court trying such case shall assess a reasonable attorney's fee for the defendant; and, in case of appeal, the court to which the appeal is taken shall assess a reasonable attorney's fee for the defendant, to be taxed and collected as other costs in the case in such court.

"SEC. 3. That all laws and parts of laws in conflict with this act be, and the same are hereby repealed, and that this act take effect and be in force from and after its passage."

Is this act constitutional? Its validity depends entirely upon the power of the Legislature to authorize the recovery of an attorney's fee in the manner prescribed by the act. It may be conceded, for the purposes of this opinion, that the Legislature can authorize the recovery of an attorney's fee in civil actions as costs, provided it does so without denying to litigants the equal protection of the laws guaranteed to them by the Constitution. As a general rule the Legislature can authorize its recovery as a penalty for the doing or the failure to do any act which it has power to prohibit or require to be done. But the first question in order here is, is it allowed as costs or as a penalty?

An attorney's fee is allowed by the act only in two classes of cases: First, where the railroad company fails to tender the amount of the damages assessed within the time prescribed by the act, and the owner of the stock killed or injured brings suit and recovers as much or more than the amount of the assessment; and,...