May 11, 1914
MISSOURI, KANSAS & TEXAS RAILWAY COMPANY OF TEXAS
ERROR TO THE JUSTICE COURT, PRECINCT NO. 7, DALLAS COUNTY, TEXAS
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; Lurton took no part in the decision of this case
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MR. JUSTICE PITNEY delivered the opinion of the court.
This action was brought in the Justice Court to recover the sum of ten dollars and seventy-five cents alleged to be due as wages from the defendant (now plaintiff in error) to the plaintiff below, with an attorney's fee of nine dollars. The fee was claimed only by virtue of an act of the legislature, approved March 13, 1909, Laws, p. 93, now forming Arts. 2178 and 2179, Texas Rev. Civ. Stat. 1911. Defendant specially excepted to this part of plaintiff's claim, on the ground that the act was invalid as constituting a burden upon interstate commerce, contrary to the Commerce Clause of the Federal Constitution and the Act to Regulate Commerce and amendments thereof, and as violating the "equal protection" and "due process" clauses of the Fourteenth Amendment. Notwithstanding these contentions, judgment was rendered in favor of plaintiff for the amount claimed, including the attorney's fee. Under the local practice, no appeal lies from a decision of the Justice Court to a higher state court in a case involving less than twenty dollars, and so the judgment is brought directly here by writ of error for a review of the Federal questions.
The statute in question (including its caption) is set
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forth in the margin.*fn1 This is the same act that was held invalid under the state constitution by the Court of Civil Appeals in Fort Worth & D.C. Ry. Co. v. Loyd, 132 S.W. Rep. 899, because of which decision this court, in Gulf, Colorado
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been granted, and this law compels one refusing payment of such demand to pay the cost and attorney's fees, not to exceed twenty dollars. The limitation of the amount of the fee to twenty dollars and to cases in which an attorney has been actually employed practically implies that such action might be prosecuted without an attorney which in effect limits the amount of the claim to two hundred dollars, because the only court in which suits of that character could be instituted by non-professional claimants, without the services of an attorney, is that of justice of the peace, whose jurisdiction cannot exceed two hundred dollars, therefore, the limitation in the caption is in effect the same as that of the body of the law, because the proviso in the law can be harmonized with the title by no other construction."
So far as the present attack is founded upon the commerce clause and the Act to Regulate Commerce, it is sufficient to say that the judgment under review was not based upon a claim arising out of interstate commerce, and hence plaintiff in error does not bring itself within the class with regard to whom it claims the act to be in this respect repugnant to the Constitution and laws of the United States. Seaboard Air Line v. Seegers, 207 U.S. 73, 76; Tyler v. Judges, 179 U.S. 405; 409; Hooker v. Burr, 194 U.S. 415, 419; Hatch v. Reardon, 204 U.S. 152, 160; Southern Railway Co. v. King, 217 U.S. 524, 534; Standard Stock Food Co. v. Wright, 225 U.S. 540, 550; Rosenthal v. New York, 226 U.S. 260, 271; Farmers Bank v. Minnesota, 232 U.S. 516, 530; Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 544.
Upon the other questions, plaintiff in error relies chiefly upon Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150. In that case a previous act of the legislature of Texas (act of April 5, 1889, c. 107, General Laws, p. 131; Supp. to Sayles' Tex. Civ. Stat., Art. 4266 a; p. 768) was held repugnant to the Fourteenth Amendment. That act
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allowed the recovery of plaintiff's attorney's fees in certain classes of cases, but only where the defendant was a railroad company, and it was adjudged to be invalid because it singled out a particular class of debtors and imposed this burden upon them, without any reasonable ground existing for the discrimination. The classification was held to be arbitrary, because having no relation to the special privileges granted to this class of corporations, or to the peculiar features of their business, distinguishing Missouri Pacific Railway Co. v. Humes, 115 U.S. 512.
The present statute, however, differs in essential features. 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 agent or employes." There is here no classification of debtors; the act bears equally against individuals and against corporations of any class doing business in the State. It applies only to certain kinds of claims; but these cover a wide range, and do not appear to have been grouped together for the purpose of bearing against any class or classes of citizens or corporations. Unless something of this sort did appear, we should not be justified in holding the act to be repugnant to the Fourteenth Amendment. It is a police regulation designed to promote the prompt payment of small claims and to discourage unnecessary litigation in respect to them. The claims included appear to be such as are susceptible of being readily adjusted by the party responsible, within the thirty days that must intervene between the presentation of the claim and the institution of suit. We may imagine that some other kinds of claims might as wel have been included; but it is to be presumed that the legislature was dealing with an actual mischief, and made the act as broad in its scope as seemed
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necessary from the practical standpoint. As has been said before, the Fourteenth Amendment does not require that state laws shall be perfect; and we cannot judicially denounce this act as based upon arbitrary distinctions, in view of the wide discretion that must necessarily reside in a state legislature about resorting to classification when establishing regulations for the welfare of those for whom they legislate. Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 293; Orient Insurance Co. v. Daggs, 172 U.S. 557, 562; Louisville & Nashville R.R. v. Melton, 218 U.S. 36, 52; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78.
It is insisted that the benefits of the act are conferred upon natural persons only; but this we cannot concede, in the absence of a decision by the courts of the State giving to it a construction thus limited. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 546. And besides, plaintiff in error is not in a position to assail the legislation on the ground that corporation-plaintiffs are not included within its benefits. Rosenthal v. New York, 226 U.S. 260, 271.
If the classification is otherwise reasonable, the mere fact that attorney's fees are allowed to successful plaintiffs only, and not to successful defendants, does not render the statute repugnant to the "equal protection" clause. This is not a discrimination between different citizens or classes of citizens, since members of any and every class may either sue or be sued. Actor and reus differ in their respective attitudes towards a litigation; the former has the burden of seeking the proper jurisdiction and bringing the proper parties before it, as well as the burden of proof upon the main issues; and these differences may be made the basis of distinctive treatment respecting the allowance of an attorney's fee as a part of the costs. Atchison, Topeka &c. Railroad v. Matthews, 174 U.S. 96; Farmers' &c. Ins. Co. v. Dobney, 189 U.S. 301, 304; McMullin v. Doughty, 68 N.J. Eq. 776, 781.
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Even were the statute to be considered as imposing a penalty upon unsuccessful defendants in cases within its sweep, such penalty is obviously imposed as an incentive to prompt settlement of small but well-founded claims, and as a deterrent of groundless defenses, which are the more oppressive where the amount involved is small. In Seaboard Air Line v. Seegers, 207 U.S. 73, 77, the court sustained a state enactment that imposed a fixed penalty of fifty dollars upon common carriers, to be recovered by the party aggrieved, for failure to promptly adjust and pay claims for loss or damage to property while in the carrier's possession. In Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217, 219, we upheld a state enactment that imposed a penalty of twenty-five dollars in addition to actual damages for failure to settle claims for lost or damaged freight within a limited time after written notice of the loss. And in Kansas City Southern Ry. v. Anderson, decided this term, ante, p. 325, we upheld the imposition of double damages in cases admitting of special treatment.
But we think it is not correct to consider this statute as imposing a penalty. The allowance is confined to a reasonable attorney's fee, not exceeding twenty dollars, where an attorney is actually employed; the amount to be determined by the court or jury trying the case. Manifestly, the purpose is merely to require the defendant to reimburse the plaintiff for a part of his expenses not otherwise recoverable as "costs of suit." So far as it goes, it imposes only compensatory damages upon a defendant who, in the judgment of the legislature, unreasonably delays and resists payment of a just demand. The outlay for an attorney's fee is a necessary consequence of the litigation, and since it must fall upon one party or the other, it is reasonable to impose it upon the party whose refusal to pay a just claim renders the litigation necessary. The allowance of ordinary costs of suit to the
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prevailing party rests upon the same principle. 2 Bac. Abr. tit. Costs. Numerous cases in the state courts have sustained similar legislation. Vogel v. Pekoc, 157 Illinois, 339, 344, 346; Burlington &c. Ry. Co. v. Dey, 82 Iowa, 312, 340; Cameron v. Chicago &c. Ry. Co., 63 Minnesota, 384, 388; Wortman v. Kleinschmidt, 12 Montana, 316, 330. If a reasonable penalty may be imposed for failure to satisfy a demand found to be just, it follows a fortiori that costs and an attorney's fee may be. See Atchison, Topeka &c. Railroad v. Matthews, 174 U.S. 96, 105; Farmers' &c. Ins. Co. v. Dobney, 189 U.S. 301, 304.
For these reasons, it seems to us that the statute in question is not repugnant to either the "equal protection" or the "due process" clauses of the Fourteenth Amendment.