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Opinion of the Court.

violation of the spirit of the Constitution, and contrary to public justice.

In State v. Goodwill, 33 West Va. 179, the Supreme Court of Appeals of West Virginia held unconstitutional a statute which prohibited persons engaged in mining and manufacturing from issuing for the payment of labor any order or paper except such as was specified in the act; and on the same day in State v. Fire Creek Coal & Coke Co., 33 West Va. 188, the same court also set aside another statute which prohibited persons and corporations engaged in mining and manufacturing, and interested in selling merchandise and supplies, from selling any merchandise or supplies to their employés at a greater per cent of profit than they sell to others not employed by them. In Park v. The Free Press Co., 72 Michigan, 560, it was held that an act limiting the recovery in suits brought for libel in certain cases to actual damages, as defined in the act, was not within the scope of constitutional legislation. In Pearson v. Portland, 69 Maine, 278, a statute, which provided that no damages for injury to person or property caused by a defect in the highway, could be recovered of any city or town by any person who, at the time the damage was done, was a resident of any country where damage done under similar circumstances was not by the laws of that country recoverable, was held to conflict with the equality clause of the Fourteenth Amendment of the United States Constitution.

It must not be understood that by citing we endorse all these decisions. Our purpose is rather to show the extent to which the courts of the various States have gone in enforcing the constitutional obligation of equal protection. Other cases of a similar character may be found in the reports, but a mere accumulation of authorities is of little value. It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground some difference which bears a just and proper relation to the attempted classification

Dissenting Opinion: Gray, J., Fuller, C.J., White, J.

and is not a mere arbitrary selection. Tested by these principles the statute in controversy cannot be sustained. The judgment of the Supreme Court of Texas is, therefore, Reversed, and the case is remanded for further proceedings

not inconsistent with this opinion.

Mr. JUSTICE GRAY, with whom concurred Mr. CHIEF JUSTICE FULLER and MR. JUSTICE WHITE, dissenting.

The Chief Justice, Mr. Justice White and myself are unable to concur in this judgment. The grounds of our dissent may be briefly stated.

Costs in civil actions at law are the creature of statute. From early times, there have been statutes making different rules as to costs, according to the nature of the issue, and the amount involved; and sometimes allowing costs to the prevailing party when plaintiff, and not when defendant. The whole matter of costs, including the party to or against whom they may be given, the items or sums to be allowed, and the right to costs as depending upon the nature of the suit, upon the amount or value of the thing sued for or recovered, or upon other circumstances, is and always has been within the regulation and control of the legislature,'exercising its discretionary power, not oppressively to either party, but as the best interests of the litigants and of the public may appear to it to demand. Bac. Ab., Costs, passim; Postan v. Stanway, 5 East, 261; Green v. Liter, 8 Cranch, 229, 242; Kneass v. Schuylkill Bank, 4 Wash. C. C. 106; Lowe v. Kansas, 163 U. S. 81.

The statute of the State of Texas, now in question, does but enact that any person having a valid bona fide claim, not exceeding fifty dollars, against a railroad corporation, for personal services or damages, or for overcharges on freight, or for destruction or injury of stock by its trains, and presenting the claim, verified by his affidavit, to the corporation, and, if it is not paid within thirty days, suing thereon in the proper court, and finally obtaining judgment for the full amount thereof in that court, or in any court to which the suit may be appealed, shall be entitled to recover, in addition to other

Dissenting Opinion: Gray, J., Fuller, C.J., White, J.

costs, a reasonable attorney's fee (if he has employed an attorney) not exceeding ten dollars, to be assessed and awarded by the court or jury trying the issue. Texas Gen. Laws of 1889, c. 107, p. 131; Sayles's Supplement, art 4266a, p. 768. In other words, if an honest claim, of not more than fifty dollars, and coming within one of those classes of small claims which most commonly arise between individuals and railroad corporations, is not promptly paid when presented under oath, and the claimant is thereby compelled to resort to a suit, the corporation, if ultimately cast in the suit, must pay to the successful plaintiff a very moderate attorney's fee, as part of the costs of the litigation.

The legislature of a State must be presumed to have acted from lawful motives, unless the contrary appears upon the face of the statute. If, for instance, the legislature of Texas was satisfied, from observation and experience, that railroad corporations within the State were accustomed, beyond other corporations or persons, to unconscionably resist the payment of such petty claims, with the object of exhausting the patience and the means of the claimants, by prolonged litigation and perhaps repeated appeals, railroad corporations alone might well be required, when ultimately defeated in a suit upon such a claim, to pay a moderate attorney's fee, as a just, though often inadequate, contribution to the expenses to which they had put the plaintiff in establishing a rightful demand. Whether such a state of things as above supposed did in fact exist, and whether, for that or other reasons, sound policy required the allowance of such a fee to either party, or to the plaintiff only, were questions to be determined by the legislature, when dealing with the subject of costs, except in so far as it saw fit to commit the matter to the decision of the courts.

The constitutionality of statutes allowing plaintiffs only to recover an attorney's fee, as part of the judgment, in particular classes of actions selected by the legislature, appears to have been upheld by the courts of most of the States in which it has been challenged. Kansas Pacific Railway v. Mower, 16 Kansas, 573, 582; Same v. Yanz, 16 Kansas, 583; Peoria &c.

Syllabus.

Railway v. Duggan, 109 Illinois, 537; Vogel v. Pekoc, 157 Illi! nois, 339; Dow v. Beidelman, 49 Arkansas, 455; Perkins v.

St. Louis &c. Railway, 103 Missouri, 52; Burlington dc. Railway v. Dey, 82 Iowa, 312, 340; Wortman v. Kleinschmidt, 12 Montana, 316; Gulf, Colorado & Santa Railroad v. Ellis, 87 Texas, 19; Cameron v. Chicago &c. Railway, 63 Minn. 384.

It is to be regretted that so important a precedent, as this case may afford, for interference by the national judiciary with the legislation of the several States on little questions of costs, should be established upon argument ex parte in behalf of the railroad corporation, without any argument for the original plaintiff. But it is hardly surprising that the owner of a claim for fifty dollars only, having been compelled to follow up, through all the courts of the State, the contest over this ten dollar fee, should at last have become discouraged, and unwilling to undergo the expense of employing counsel to maintain his rights before this court.

CLARKE v. McDADE.1

ERROR TO THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN

FRANCISCO, CALIFORNIA.

No. 158. Submitted January 13, 1897. – Decided January 25, 1897.

A general statement that the decision of a state court is against the consti

tutional rights of the objecting party, or against the Fourteenth Amendment, or that it is without due process of law, particularly when these objections appear only in specifications of error, so called, will not raise a Federal question, even where the judgment is a final one within Rev.

Stat. $ 709. In these cases there was no final judgment, such as is provided for in Rev.

Stat. $ 709, and there does not appear to have arisen any Federal question whatever.

1 With this case were submitted No. 159, Clarke v. McDade, No. 165, Clarke v. McDade, No. 160, Clarke v. Mott, and No. 161, Clarke v. Mott, all error to the Superior Court of the city and county of San Francisco. The opinion of this court is entitled in all the cases.

Opinion of the Court.

The case is stated in the opinion.

Mr. A. C. Searle, for plaintiff in error, submitted on his brief, on which were Miss Clara S. Foltz and the plaintiff in error.

No appearance for defendants in error.

MR. JUSTICE PECKHAM delivered the opinion of the court.

The records in the above numbers, 158 and 159, relate to proceedings in habeas corpus. Those records are printed. Numbers 161 and 165 also relate to proceedings in habeas corpus. The records in those cases are not printed. Number 160 relates to a writ of error in what is termed in the record “an action."

All the records now before us, both printed and unprinted, are such a mass of confusion as to render it difficult to determine what has been done in the court below. The records relating to the proceedings taken upon habeas corpus show applications for that writ to various judges of the Superior Court of the city and county of San Francisco, State of California. From a perusal of the series of papers variously denominated orders, objections, demurrers, motions to vacate, answers, specifications of errors and petitions for reversal, which are mixed up in inextricable confusion, we are able to gather that the plaintiff in error, Clarke, was proceeded against in the Superior Court of San Francisco as an alleged insolvent, and that such court after a hearing adjudged that he was insolvent; that he appealed from the adjudication and his appeal was heard in the Supreme Court of California, which court affirmed the adjudication and remitted the record to the Superior Court of San Francisco. These facts are discovered from the perusal of a paper appearing to be an order signed by one of the judges of the Superior Court, which shows that there had been an appeal, and that the remittitur had come down to that court affirming its judgment adjudg. ing Clarke an insolvent.

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