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than forty years of the custom and commercial usage set up by appellee in the amendment to his intervening petition, quoted in the prefatory statement. It is no answer to say that a trade custom or usage should not prevail against clear and unequivocal rules of law. This is a petitio principii. The question under consideration is whether certain portions of the written law are to be given by construction an effect different from that expressed in their language, on the ground that by authoritative decisions of the Supreme Court of the State the asserted policy has been found to be implied in them. Since it seems to us that neither the statutes nor the decisions go to the extent that is claimed for them by appellants, we may refer to the established custom as evidence of what has long been understood as the law; for, as this court held in Gibson v. Stevens, and as the Supreme Court of Ohio held in Gibson v. Chillicothe Bank, such usages are to be judicially recognized as a part of the law.
It results that by the local law the transactions in question, as between Rohrer and Pattison, had the effect of transferring to the latter the legal title and right to possession for the purposes of the agreement between them; and we think it is a matter of indifference whether the transaction be called a pledge, or an equitable pledge, or an equitable lien. The substance of the matter is for present purposes the same.
This being so, the superiority of Pattison's right over that of the trustee in bankruptcy is established by the decision of this court in Taney v. Penn Bank, 232 U. S. 174.
MISSOURI, KANSAS & TEXAS RAILWAY COM
PANY OF TEXAS v. HARRIS.
ERROR TO THE JUSTICE COURT, PRECINCT NO. 6, HOPKINS
No. 604. Submitted February 24, 1914.-Decided Jane 8, 1914.
Missouri, Kansas & Teras Ry. v. Cade, 233 U. S. 642, followed to effect
that the Texas Statute of 1909 allowing an attorney fee in certain cases for claims of less than a specified amount is not unconstitutional under the due process or equal protection provisions of the
Fourteenth Amendment. A state police regulation designed to promote the payment of small but
well founded claims and to discourage litigation in respect thereto, and which only incidentally includes claims arising out of interstate commerce, does not constitute a direct burden on interstate commerce, and is not, in the absence of legislation by Congress on the subject, repugnant to the commerce clause or otherwise in conflict with Federal authority. Atlantic Coast Line v. Mazursky, 216 U. S.
122. When Congress has exerted its paramount legislative authority over a
particular subject of interstate commerce, state laws upon the same
subject are superseded. The mere creation of the Interstate Commerce Commission, and the
grant to it of a measure of control over interstate commerce, does not, in the absence of specific action by Congress or the Commission, interfere with the police power of the States as to matters otherwise within their respective jurisdictions and not directly burdening interstate commerce even though sach commerce may be incidentally
affected. Southern Ry. Co. v. Reid, 222 U. S. 424. While the Carmack Amendment supersedes state legislation on the
subject of the carrier's liability for loss of interstate shipments, it does not interfere with a state statute incidentally affecting the remedy for enforcing that liability, such as a moderate attorney fee in case of recoverable contested claims for damages. Atlantic Coast
Line v. Riverside Mills, 219 U. S. 186, distinguished. The Texas Statute of 1909 allowing a reasonable attorney's fee as a
Argument for Plaintiff in Error.
part of the costs in suits on contested but proper claims of less than $200 is not unconstitutional as applied to claims for loss on interstate shipments nor is it inconsistent with any of the provisions of the Act to Regulate Commerce.
The facts, which involve the constitutionality of a statute of the State of Texas allowing an attorney's fee in certain actions based on claims for small amounts agairst railway companies, are stated in the opinion.
Mr. Joseph M. Bryson, Mr. Aldis B. Browne, Mr. Alexander S. Coke and Mr. A. H. McKnight for plaintiff in error:
The act of the legislature in question is void because in conflict with that provision of § 1 of the Fourteenth Amendment to the Constitution of the United States which guarantees the equal protection of the laws.
The act violates that provision of § 1 of the Fourteenth Amendment which prohibits the taking of property without due process of law.
The act is in part a regulation of, a burden upon, and an interference with, interstate commerce, contrary to subdivision 3, 88, Article I of the Constitution of the United States, and is in conflict with the Act to Regulate Commerce approved February 4, 1887, and the acts amendatory thereof and supplementary thereto, and to that extent is void; and since the good, if any, and the bad in it are so intermingled that the one cannot be separated from the other, the act must fail in whole.
The provisions of the act of the legislature in question relating to overcharges and loss and damage claims, as to interstate shipments, are void.
In support of these contentions, see Adams Ecp. Co. v. Croninger, 226 U. S. 491; Adams Exp. Co. v. New York, 232 U. S. 14; A., T. & S. F. Ry. Co. v. Matthews, 174 U. S.
Argument for Plaintiff in Error.
96; Atl. Coast Line y. Mazursky, 216 U. S. 122; Atl. Coast Line v. Riverside Mills, 219 U. S. 186; Barbier v. Connolly, 113 U. S. 27; Barrett v. Indiana, 229 U. S. 30; Blake v. McClung, 172 U. S. 259; Bradley v. Richmond, 227 U. S. 481; Central of Georgia R. R. Co. v. Murphey, 196 U. S. 194; Chi., M. & St. P. Ry. Co. v. Polt, 232 U. S. 165; C., R.I. & P. Ry. Co. v. Hardwick Elevator Co., 226 U. S. 426; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Kansas City Stock Yards, 183 U. S. 79; El Paso & N. E. R. R. Co. v. Gutierrez, 215 U. S. 97; Employers' Liability Cases, 207 U. S. 501; Fidelity Mutual Life Assn. v. Mettler, 185 U.S. 308; G., C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150; G., C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98; G., C. & S. F. Ry. Co. v. Moore, 83 S. W. Rep. 362; Hale v. Henkel, 201 U. S. 76; H. & T.C. R. R. Co. v. Mayes, 201 U. S. 321; III. Cent.R.R. Co.v.McKendree, 203 U. S. 529; Int. Com. Comm. v. L. & N. R. R. Co., 227 U. S. 88;-Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639; McNeill v. Southern Ry. Co., 202 U. S. 543; M., K. & T. Ry. Co. v. Harriman, 227 U. S. 657; Mo. Pac. Ry. Co. v. Humes, 115 U. S. 512; Mo. Pac. Ry. Co. v. Larabee Mills, 211 U. S. 612; Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1; Nor. Pac. Ry. Co. v. Washington, 222 U. S. 370; St. L., I. M. & S. Ry. Co. v. Wynne, 224 U. S. 354; St. L. & S. F. Ry. Co. v. Mathews, 165 U. S. 1; Seaboard Air Line v. Seegars, 207 U. S. 73; Simpson v. Shepard, 230 U. S. 352; Sinnot v. Davenport, 22 How. 242; Smyth v. Ames, 169 U. S. 522; Southern Ry. Co. v. Greene, 216 U. S. 400; Southern Ry. Co. v. Reid, 222 U. S. 424; Southern Ry. Co. v. Reid & Beam, 222 U. S. 444; West. Un. Tel. Co. v. Milling Co., 218 U. S. 406; Yazoo & Miss. R. R. Co. v. Greenwood Grocery Co., 227 U. S. 1; Yazoo & Miss. R. R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Yick Wo v. Hopkins, 118 U. S. 356.
There was no appearance or brief filed for defendant in error.
MR. JUSTICE PITNEY delivered the opinion of the court.
In this case the plaintiff below (now defendant in error) recovered a judgment for three dollars and fifty cents damages for loss of certain freight that was shipped from St. Louis, Missouri, consigned to plaintiff at Como, Texas, and delivered by the initial carrier to defendant for transportation to destination; the loss having occurred on defendant's line in Texas. The judgment includes an attorney's fee of ten dollars, allowed by virtue of the local statute approved March 13, 1909, Laws p. 93, Texas Rev. Civ. Stat. 1911, Arts. 2178 and 2179, which was under consideration in Missouri, Kansas & Texas Ry. v. Cade, decided May 11, 1914, 233 U. S. 642, and is set forth verbatim in a marginal note to the opinion in that case. The controversy turns upon the allowance of the attorney's fee, the same Federal questions having been raised in the state court and in this court that were raised in the Cade Case. So far as the Fourteenth Amendment is concerned, our opinion in that case renders further discussion unnecessary. But since the claim of the present plaintiff was based upon freight lost in interstate commerce, we must now pass upon the question whether the allowance of an attorney's fees in such a case, pursuant to the Texas statute, is repugnant to the Commerce Clause of the Federal Constitution or the Act to Regulate Commerce and amendments thereof.
By way of preface, we should repeat that the state court of last resort has construed the act as relating only to the collection of claims not exceeding $200 in amount; that by its terms it applies to claims against any person or corporation doing business in this State, for personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or employés"; and