Opinion · Supreme Court of the United States
Missouri Pacific Railway Co. v. Larabee
Mo. Pac. Ry. Co. v. Larabee, 234 U.S. 459 (1914)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1914-06-22
- Topic
- general
How later courts describe this case
- Kansas statute, as interpreted, does not violate the fourteenth amendment
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UpLaw has not yet analyzed Missouri Pacific Railway Co. v. Larabee. The absence of a flag is not a finding that it is good law.
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MISSOURI PACIFIC RY. CO.v. LARABEE,234 U.S. 459(1914)
34 S.Ct. 979
MISSOURI PACIFIC RAILWAY COMPANYv. LARABEE.
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
No. 135.
Argued December 15, 16, 1913.
Decided June 22, 1914.
A DISPUTE as to a small charge for demurrage having arisen
between the Missouri Pacific Railway Company and
Page 460
the Larabee Flour Mills Company, the Railway Company to enforce
payment, suspended the rendering of a certain class of switching
service which it had previously regularly performed for the Mills
Company. The latter on September 15, 1906, commenced in the
Supreme Court of Kansas mandamus proceedings to compel the
continuance of the service. After a response to an alternative
rule and a hearing on the eighth of December, 1906, the court
granted a peremptory mandamus.74 Kan. 808. At the close of
the opinion there was the following memorandum (p. 822):
"The court has authority to render judgment in favor of the
plaintiff for any damage it has sustained (Gen. Stats. 1901, sec.
5193). The plaintiff is given ten days in which to file a claim
for damages, stating separately the character and amount of each
item. The defendant is given ten days after notice of the filing
of the claim in which to except to any items which it may deem
not recoverable. The court will then pass upon the exceptions, if
any be taken, and make orders respecting a hearing."
Some days thereafter a claim of damages was filed enumerating
fifteen items. The first eight concerned various business losses
alleged to have been occasioned by the suspension of the service,
such as decrease in the output of the mill, increased cost of
hauling, etc., etc. Four of the claims on these subjects
aggregated $4907.39, and four stated no amount but reserved the
right to make a future claim for losses in case the litigation
should be prolonged and the resumption of the service postponed.
The remaining six items, with one exception, related to small
expenses alleged to have been incurred in the mandamus suit. One
of them, however, the fourteenth, made a charge of $2500 "to cash
paid and plaintiff's agreement to pay Waters Waters attorneys'
fees in this case." The fifteenth item reserved the right to make
a charge for future
Page 461
legal services "if this case is taken to the Supreme Court of the
United States, whatever such services may be worth." A few days
after this claim was filed, on December 24, 1906, a writ of error
was issued from this court to the judgment in mandamus and a bond
to operate as a supersedeas was approved. About two years
thereafter, on January 11, 1909, the case was decided in this
court and the judgment below was affirmed.211 U.S. 612.
After the mandate went down, leave was given to file an
amended claim for damages and on the same day a Commissioner was
appointed to hear the testimony concerning it and report. The
amended claim was filed. It was divided into three general
classes, first, damages asserted to have arisen from arisen from
loss of business, etc.; second, damages claimed as the result of
the expenses and outlay for the suit; third, cost incurred or
anticipated, occasioned by the hearing of the claim. The first,
that is, the business losses, was embraced in separate items
substantially following the order of the original claim, that is,
it was based on alleged loss of output, increased cost of
operation, etc., etc. The amounts of many of these items were
larger as they covered the time from the discontinuance of the
service up to the filing of the amended claim. The aggregate of
the claims was $18,921.90 as compared with $4907.39 made at the
time of the first claim. The second, the expenses of the suit,
was greatly changed. Leaving out two insignificant items, as
amended the claim was in substance as follows:
The claim for $2500 paid or to be paid to Waters Waters
for personal services was changed to read, "For the reasonable
value of the services of Waters Waters to bring this action
and to attend to the same in the Supreme Court of the State of
Kansas, the sum of .......................................... $2,500.00
Page 462
"Tenth: For the reasonable value of the services of Waters
Waters in this case in the Supreme Court of the United
States, the sum of .......................................... $40,000.00
"Eleventh: For cash paid out for printed briefs in the
State and United States Supreme Court, the sum of ........... 93.50
"Twelfth: For the reasonable value of the professional
services of John F. Switzer, attorney at law, employed to
assist Waters Waters in the Supreme Court of the United
States, the plaintiff in the best judgment of the partners
composing said firm, deeming it necessary after considering
the momentous and far-reaching controversy made, urged and
argued in the Supreme Court of the United States and which
controversy it could not avoid, the sum of .................. 3,000.00
"Thirteenth: For the reasonable value of the professional
services of the firm of Rossington Smith, attorneys at law,
also employed to present the case of the plaintiff in the
Supreme Court of the United States, the plaintiff in the best
judgment of the partners composing said firm, deeming it
necessary, after considering the momentous and far-reaching
controversy made, urged and contended for in the Supreme Court
of the United States, and which controversy it could not
avoid, the sum of ........................................... 30,000.00
"Fourteenth: For the railroad fare, hotel bills and
reasonable expenses of W.H. Rossington and J.G. Waters in
attending on the United States Supreme Court in April. 1908,
the sum of $250 each and making a total of .................. 500.00
Page 463
"Fifteenth: For the railroad fare, hotel bills and
reasonable expenses of Charles Blood Smith and J.G. Waters
in attending on the Supreme Court in October, 1908, the
sum of ...................................................... 480.60
"Sixteenth: For the costs due the plaintiff in the Supreme
Court of the United States, the sum of ...................... 148.25"
The 17th, 18th, and 19th items embraced small items of
traveling and other expenses of the parties and some of their
attorneys. In the items of court expenses the difference between
the original claim was substantially this, that the claim had
grown from about $2800 for attorneys' fees in the state court
when the original claim in damages was filed to a sum in excess
of $75,000.00, all of which increase resulted from charges made
for professional services rendered in this court in connection
with the trial of the case. The remaining items of the third
class related to expenses incurred under the reference to the
Commissioner before whom the case was pending with a reservation
of the right to make future charges for such purpose when the
reference was completed.
The Railway Company objected to the various items in the
amended claim as follows: To those covering the business losses,
decrease of output, increased expenses, etc., etc., besides
denying that the suit was the proximate cause of the losses
represented by the alleged claims and asserting their speculative
nature, it was specially charged that in so far as they included
items arising after the allowance of the writ of error from this
court and the giving of the supersedeas bond they were not within
the cognizance of the court but were matters alone of Federal
competency within the jurisdiction of this court. So far as the
claims for alleged outlay and expenses including attorneys' fees
in the state court were concerned, it was alleged that there was
no right to recover them because
Page 464
the only authority under which they could be allowed was a
statute of the State of Kansas relating to mandamus proceedings
and that such statute as construed by the court of last resort of
the State was repugnant to the due process and equal protection
clauses of the Fourteenth Amendment because under such
construction a right was given by the statute to a plaintiff in
mandamus to recover attorneys' fees as damages, while no
reciprocal right in case of success was given to a defendant and
no such right was given to litigants generally. Coming to the
alleged right to recover attorneys' fees for services rendered on
the writ of error in this court and the other items, such as
briefs, travelling expenses, hotel bills, etc., etc., it was
expressly charged that under the statutes of the United States
the effect of the writ of error from this court and the
supersedeas was to deprive the state court of all authority over
such expenses and that moreover "Under such statutes and laws of
the United States, this Court has no power, authority or
jurisdiction to consider the claim and demand for damages on
account of attorneys' fees for services rendered in such
proceedings in error from the Supreme Court of the United States
to the Supreme Court of Kansas; and for the further reason that,
if the said plaintiffs were entitled to any damages, their
application therefor should be made to the Supreme Court of the
United States, or in an independent proceeding brought on the
supersedeas bond so approved and allowed as a supersedeas by the
Chief Justice of this state. . . . and because, further, to allow
such claim would be violative of the Constitution of the United
States, and especially the Fourteenth Amendment thereof, which
prohibits any state from denying to any person, company or
corporation the equal protection of the laws, and prevents any
state from depriving any person, company or corporation of its
property without due process of law: and because of such
Judiciary Act (of the United States) . . . this court
Page 465
is deprived of all jurisdiction to consider or determine any such
question or element of damage in a proceeding of this kind; and
because, further, the Supreme Court of the United States, in
affirming the judgment of this court . . . allowed to said
plaintiffs, on account of attorneys' fees, the sum of $20.00 and
assessed the same against the said defendant. . . ."
After proof and hearing the Commissioner made an elaborate
report stating fully what he conceived to be the facts and the
law of the case. On the subject of the various claims made for
the allowance of damages for a charge of fees for professional
services rendered in the Supreme Court of the United States, the
Commissioner made the following statement:
"I find, that no agreement has ever been had between the Mill
Company and any of the attorneys as to the amount of their
compensation; that neither of the attorneys has at any time
entered on his books a charge against the Mill Company for
services rendered; nor have they informed the Mill Company of the
amount intended to be charged; nor have they determined in their
own minds any definite amount intended to be charged.
"I find, that the attorneys will claim the full amount, and
will accept whatever amount that shall be determined by this
Court in this proceeding to be a reasonable compensation for
their services in the case and allowed as part of the damages.
"I further find, that it is mutually understood between the
Mill Company and the attorneys named that whatever amount is
recovered in this proceeding on account of fees and expenses of
counsel will be paid by the Mill Company to and accepted by the
attorneys as a full discharge of the liability to them."
The conclusions of the Commissioner as to the amounts to be
allowed as damages under the three classes of claims were as
follows:
Page 466
As to the first class, he reduced the claim for business
losses, increased expenses, etc., etc., from $18,921.90 to ..... $ 5,658.10
As to the amount claimed as due because of the professional
services of Waters Waters in the state court the sum claimed
was allowed in full ............................................ 2,500.00
As to the items for professional services rendered in the
Supreme Court of the United States, including hotel bill, etc.,
the amount was reduced from about $75,000 to ................... 11,480.00
Under the third class three small items were allowed relating
to the expenses of the parties in Kansas and concerning the
reference to the Commissioner .................................. 376.00
----------
Total ......... $20,014.10
Both parties expected to the report of the Commissioner on
various grounds and after a hearing the Supreme Court sustained
his action and affirmed his report.85 Kan. 214.
The Federal errors relied upon concern three subjects: The allowance of business losses, etc.; the award of a sum for attorneys' fees in the state court up to and including the writ of error from this court and the supersedeas; and the grant of an amount for attorneys' fees agreed or supposedly agreed to be paid for professional services rendered in this court on the writ of error and travelling expenses and hotel bills allowed for the same purpose. The three involve different considerations and hence we consider them separately. We come first to test the question as to attorneys' fees in this court, as it is the most important and far reaching since it involves considerations of the gravest importance going to the entire structure of our system of government, based as it is upon an absolutePage 468denial of any power whatever in the court below to deal with the subject while the other two contentions at best challenge power but relatively or partially.First. The question of the power of the court to make theallowance for professional services rendered in this court on theformer writ of error.
There can be no doubt that tested by the general principles of law controlling in this court, by the statutes of the United States relating to the subject or the rules of this court concerning the same, the award for the attorneys' fees in question was absolutely unwarranted. We do not stop to review and expound the settled line of authority demonstrating this result because it would be wholly superfluous to do so as the principles have been so long the settled rule of conduct in this court and are so elementary as to require not even a reference to the cases. Some of the cases, nevertheless, we cite:Arcambelv.Wiseman, 3 Dall. 306;Dayv.Woodworth, 13 How. 363, 372;Oelrichsv.Spain, 15 Wall. 211, 230-231;Tullockv.Mulvane,184 U.S. 497,511,et seq. Indeed, this view is not disputed in the argument at bar and was not questioned in the court below, since the court placed its action in making the allowances in question, not upon the supposed authority of any act of Congress nor of any practise of this court or rule thereof sustaining the same nor upon any principle of general law, but solely upon the theory that a state statute gave the power to make the allowances. Nothing could make this view clearer than does the following statement taken from the opinion of the court below (Syllabus — 5): "The damages in mandamus proceedings comprehended by Section 723 of the Code (Gen'l. Stat. 1909, Sec. 6319) are the injuries sustained as the natural and probable consequences of the wrongful refusal to comply and the expense reasonably and necessarily incurred in compelling compliance with the alternative writ, including reasonable attorneys' fees in this court and in the SupremePage 469Court of the United States." And in addition the view of the court below is aptly illustrated by the following passage from the report of the Commissioner answering the claim of the Railway Company as to the effect of the writ of error from this court and the giving of the supersedeas and the resulting authority of this court over the cause under the statutes of the United States — a passage which the court below expressly adopted and made a part of its opinion (p. 221):
"Upon this objection I conclude:
"1. That the jurisdiction of this court in mandamus is the creation of the constitution and the statutes of the State of Kansas.
"2. That this court is the sole judge of what that constitution and those statutes provide.
"3. That the jurisdiction of this court in mandamus over persons within its jurisdiction cannot be affected by act of Congress.
"4. That the Judiciary Act does not and was not intended to affect the jurisdiction of this court.
"5. That the jurisdiction of this court in mandamus attaches upon the issuance of the alternative writ, and the subject-matter of the proceeding being the awarding a peremptory mandamus, that jurisdiction continues unabated, not only until the writ is awarded, but also until the writ is issued and obedience to it enforced.
"6. That the alternative writ is a command of the performance of specified and prescribed duties; and return to the writ is a refusal to perform the duties prescribed; the judgment awarding a peremptory mandamus is a conclusive adjudication that such refusal was wrongful, and the act of the court compelling compliance with the command of the alternative writ.
"7. That the damages comprehended by the Kansas statute are the injuries sustained as the natural and probable consequences of the wrongful refusal to complyPage 470and the expenses reasonably and necessarily incurred in compelling compliance with the command of the alternative writ.
"8. That the allowance of the writ of error did not operate to remove the suit from the Supreme Court of the State into the Supreme Court of the United States; its only effect was to bring up the record for purposes of review.
"9. The allowance of the writ of error did not operate as a supersedeas; the taking the supersedeas bond brought about the supersedeas. The taking the bond, and the supersedeas itself, in so far as it can be conceived of as a substantial act, was the action of the Supreme Court of Kansas."
We observe in passing, that the views concerning the Judiciary Act and the effect of the writ of error from this court and the relevant statutes of the United States which were expounded in this passage are not required to be reviewed because they are not necessarily involved in the decision below since that decision did not rest upon them but was based upon the operative effect of the state statute, and hence the views expressed as to the United States statutes in the passage quoted must have been adopted simply because they were considered to be illustrative of the principle by which the state statute was made to control. We, therefore, without in the slightest degree admitting their correctness even for argument's sake, pass the conclusions as to the statutes of the United States expressed in the passages of the report and shall not recur to them except in so far as under the principle ofnoscitur a sociiswe may find it convenient to do so as illustrating the fundamental and destructive error embodied in the conclusion of the court as to the operative power of the state statute.
The question is then, Was the court below right in holding that it had the power because the Kansas statute so authorized to assess as against one party to a suit in thePage 471Supreme Court of the United States a sum for attorneys' fees for services rendered in that court as against another party to the suit although such assessment, as we have seen, was not authorized by the law of the United States but was in conflict with the settled rule in the Supreme Court of the United States? It seems superfluous to put the question since its very statement conveys of necessity a negative answer. For how on the face of the question, consistently with the most elementary principles of our constitutional system of government can it be possibly assumed that a state statute could be made operative in the Supreme Court of the United States to the disregard of its settled rule of procedure and of the principles which had guided its conduct from the beginning, directly sustained by express rule adopted under the sanction of Congress?
We might well go no further, but in view of the importance of the subject we briefly advert to one or more of the obvious consequences which would arise from maintaining the principle. It would follow, of course, that the right to freely seek access to the Supreme Court of the United States would cease to exist, since it would be in the power of the States to burden that right to such a degree as to render its exercise impossible. How better could this be illustrated than by the case before us, that is, by the necessary implication that there would have been power in the court below if it had deemed it just to do so, to award the claim which was made for $75,000 attorneys' fees for services rendered in this court! Indeed, in the argument at bar it was freely conceded that it may well have been that the mainspring which caused the adoption of the statute relied upon was the deterrent influence which it would produce in the prosecution of writs of error to this court. Thus the argument proceeds: "The Railway Company refused to obey; judgment is had against it; it still refuses, it seeks delay; it initiatesPage 472a writ of error in this court. By this method it makes the suit expensive. . . . . It was just this situation that the legislature of Kansas intended to correct. . . ."
And the far-reaching operation of the principle by which the state statute could alone have been made to produce the result attributed to it by the court below is illustrated by the legal conclusions of the operation and effect of the statutes of the United States stated in the report of the Commissioner which was adopted by the court as expressed in the passage which we have previously quoted. This is the case since the views thus sanctioned are necessarily illustrative of the mental atmosphere by which alone it could have been possible to conceive that the state power extended to regulate the proceedings in the Supreme Court of the United States to the disregard of the express provisions of the act of Congress. A view which is not an over-statement when it is observed that among other things the conclusion which was below sustained was that the writ of error from this court and the supersedeas authorized by the act of Congress were not Federal but purely state acts. And, moreover, it was concluded that the exertion by the Supreme Court of the United States under the Constitution and laws of the United States of the power to bring up a case from the state court in order to review it and to grant a supersedeas in order to make that right effective, operated to leave the state court in possession of the case and only to move the record, hence creating a residuum of state power which as to such case gave authority to the state court to regulate, certainly as to attorneys' fees, the proceedings in the Supreme Court of the United States.
We shall reason no further, and shall content ourselves with pointing out that in substance and effect the absolute want of foundation for the contention here made has been in express terms foreclosed. For instance, at this term inHarrisonv.St.Louis San Francisco R.R.,Page 473232 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 inTullockv.Mulvane,184 U.S. 497. See alsoInsurance Co. v.Morse, 20 Wall. 445, 453;Clarkv.Bever,139 U.S. 96,102-103.Second. The power of the court below to award damages for thebusiness losses which were suffered after the allowance of thewrit 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 anon sequiturbecause 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.Page 474Third. The power of the court below to award damages forattorneys' fees for services rendered in the state court.
The attorney's 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. (Carneyv.Neeley,60 Kan. 672;McClurev.Scates, 64 Kansas. 282.) The contention is that as the statute exceptionally allows attorneys' fees in the 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 clauses 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 discretionPage 475and 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 reciprocalMissouri, 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 byGulf, 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, travelling 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.Page 476