232 U. S. 318, a statute of the State of Oklahoma which burdened or impeded the right of free access to the courts of the United States was held to be repugnant to the Constitution and the destructive effect of such legislation upon our institutions was pointed out. And light on the subject is afforded by a consideration of the ruling in Tullock v. Mulvane, 184 U. S. 497. See also Insurance Co. v. Morse, 20 Wall. 445, 453; Clark v. Bever, 139 U. S. 96, 102-103.

Second. The power of the court below to award damages for the business losses which were suffered after the allowance of the writ of error and the supersedeas.

The contention is that the power did not exist since the effect of the writ of error and the supersedeas was to remove the case to this court and therefore deprive the court below of the right to consider any act causing damage done after the prosecution of the writ of error and the supersedeas. But conceding in the fullest degree the asserted effect of the supersedeas, that effect ceased with the affirmance of the judgment by this court and therefore necessarily opened the way for the court below to consider and determine how far the alleged illegal conduct of the Railway Company had entailed damages and consequent responsibility. Conceding further that the bond for supersedeas embraced such acts and the resulting damages therefrom and therefore there was a right to sue on the bond, again the deduction is a non sequitur because the right to resort to the bond did not imply an exclusion of the right to sue under the general law to recover damages if the election was made to follow that course. Of course, as there is nothing in this case even suggesting that the award of damages for acts done pending the writ of error in this court was so excessive as to justify the extreme inference that punishment for invoking the right to resort to this court was inflicted, we need not consider the rule which would be applicable in such a contingency.

Opinion of the Court.

234 U. S.

Third. The power of the court below to award damages for attorneys' fees for services rendered in the state court.

The attorneys' fees were allowed by the court below in virtue of a statute which gave such power in case of mandamus proceedings. The construction of this statute which was adopted was not original in this case but was an application of an interpretation of the statute previously affixed to it, and indeed which was made prior to the commencement of the mandamus proceedings in question. (Carney v. Neeley, 60 Kansas, 672; McClure v. Scates, 64 Kansas, 282.) The contention is that as the statute exceptionally allows attorneys' fees in mandamus proceedings against one refusing to obey the peremptory writ of mandamus and does not allow them in other cases, it contravenes the equal protection of the laws clause of the Fourteenth Amendment and is void. But it is not open to controversy that the Fourteenth Amendment was not intended to deprive the States of their power to establish and regulate judicial proceedings and that its provisions therefore only restrain acts which so transcend the limits of classification as to cause them to conflict with the fundamental conceptions of just and equal legislation. The proposition here relied upon therefore comes to this: that there is not such a distinction between the extraordinary proceeding by mandamus and the ordinary judicial proceedings as affords a ground for legislating differently concerning the two. But when thus reduced to its ultimate basis, the proposition answers itself, since it cannot be formulated without demonstrating its own unsoundness. If more were needed to be said, it would suffice to direct attention to the distinction which must obtain between that which, is ordinary and usual and that which is extraordinary and unusual. Or, to state it otherwise, to call attention to the difference between the duty to perform a ministerial act concerning which there is room neither for the exercise of judgment or discretion

and the right on the other hand to bring into play, judgment and discretion as prerequisites to the performance of an act of a different character, and the distinction which justifies the classification made by the statute also answers the argument that the equal protection clause of the Fourteenth Amendment is violated because the allowance of attorneys' fees was not reciprocal Missouri, K. & T. Ry. v. Cade, 233 U. S. 642. The ruling in the case last cited also serves to demonstrate the want of merit in the contention that the question here presented is governed by Gulf, C. & S. F. Ry. v. Ellis, 165 U. S. 150.

Again we deem it necessary to observe that the opinion here expressed is confined to the case before us. We do not therefore imply that the reasoning here applied would be controlling in a case where although the name mandamus was preserved, in substance and effect, the distinction between that writ in an accurate sense and ordinary procedure would have disappeared.

It follows from what we have said that error was committed in the court below in allowing the items of damages for attorneys' fees, traveling expenses, etc., in the Supreme Court of the United States, and that from a Federal point of view there was no error in the judgment below to the extent that it awarded the damages complained of and allowed a claim for attorneys' fees for services rendered in the state court. And to give effect to these conclusions the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.

And it is so ordered.

Syllabus.

234 U.S.

INTERMOUNTAIN RATE CASES.1

APPEALS FROM THE UNITED STATES COMMERCE COURT. Nos. 136, 162. Argued October 18, 21, 22, 1912. Decided June 22, 1914. Prior to the amendment of June 18, 1910, § 4 of the Act to Regulate Commerce lodged in the carrier the right to exercise a primary judgment, subject to administrative control and ultimate judicial review, concerning the necessity and propriety of making a lower rate for the longer than the shorter haul, thus giving the carrier power to exert its judgment as to things of a public nature; but the amendment withdrew that right of primary judgment and lodged it in the Interstate Commerce Commission to be exercised on request and after due investigation and consideration of the public interests concerned and in view of the preference and discrimination clauses of §§ 2 and 3 of the act.

The long and short-haul provisions of § 4 of the Act to Regulate Commerce as amended by the act of June 18, 1910, are not repugnant to the Constitution of the United States as a delegation of power to the Interstate Commerce Commission beyond the competency of Congress.

If a statute is constitutional, this court must be governed by it and its plain meaning; with the wisdom of Congress in adopting the statute this court has nothing to do.

In Louis. & Nash. R. R. Co. v. Kentucky, 183 U. S. 503, this court decided that a general enforcement of the long and short-haul clause of the Act to Regulate Commerce would not be repugnant to the Constitution, and will not now reconsider and overrule that decision. The Commerce Court had jurisdiction of a suit to enjoin the enforcement of the order of the Interstate Commerce Commission involved in these cases and which refused the request of carriers to put in force rates requested by them.

Under § 4 of the Act to Regulate Commerce, as amended by the act of June 18, 1910, the Interstate Commerce Commission has power to make an order, such as that involved in these cases, permitting a

1

1 Docket title of these cases: No. 136, United States of America, Interstate Commerce Commission et al., v. Atchison, Topeka & Santa Fe Railway Company et al. No. 162, United States of America, Interstate Commerce Commission et al., v. Atchison, Topeka & Santa Fe Railway Company et al.

lower rate for the longer haul but only on terms stated in the order, establishing zones for the intermediate points and relative percentages upon which proportionate rates should be based. 191 Fed. Rep. 856, reversed.

THE facts, which involve the constitutionality of the long and short-haul provisions of the Act to Regulate Commerce as amended by the act of June 18, 1910, and the validity of an order made in pursuance thereof by the Interstate Commerce Commission, are stated in the opinion.

Mr. Attorney General Wickersham and Mr. Assistant to the Attorney General Fowler, with whom Mr. Blackburn Esterline, Special Assistant to the Attorney General, was on the brief, for the United States.

Mr. P. J. Farrell for the Interstate Commerce Commission.

Mr. Charles Donnelly, Mr. F. W. M. Cutcheon and Mr. F. C. Dillard for appellees.

Mr. Rush C. Butler, Mr. William E. Lamb, Mr. Stephen A. Foster and Mr. Cornelius Lynde filed a reply brief on behalf of the Chicago Association of Commerce.

Mr. Joseph N. Teal for Portland Chamber of Commerce. Mr. J. B. Campbell for the City of Spokane.

Mr. William A. Glasgow, Jr., for Giroux Consolidated Mines Co.

By leave of court, Mr. Alfred P. Thom filed a brief in behalf of certain interested parties.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

We shall seek to confine our statement to matters which are essential to the decision of the case. The provisions of § 4 of the Act to Regulate Commerce dealing with what is known as the long and short-haul clause, the power of