•111 theory just suggested. There is no fence law in Texas. The legislature of the state has not deemed it necessary for the protection of life or property to require railroads to fence their tracks, and, as no duty is imposed, there can be no penalty for nonperformance. Indeed, the statute does not proceed upon any such theory. It is broader in its scope. Its object is to compel the payment of the several classes of debts named, and was so regarded by the supreme court of the state." Again: "Neither can it be sustained as a proper means of enforcing the payment of small debts, and preventing any unnecessary litigation in respect to them, because it does not impose the penalty in all cases where the amount in controversy is within the limit named in the statute. Indeed, the statute arbitrarily singles out one class of debtors and punishes it for a failure to perform certain duties, duties which are equally obligatory upon all debtors; a punishment not visited by reason of the failure to comply with any proper police regulations, or for the protection of the laboring classes, or to prevent litigation about trifling matters, or in consequence of any special corporate privileges bestowed by the state. Unless the legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit a penalty upon them which is not imposed upon others guilty of like delinquency, this statute cannot be sustained. But arbitrary selection can never be justified by calling it 'classification.' The equal protection demanded by the fourteenth amendment forbids this." *If the opinions in the Ellis Case and in this case be taken together, the state of the law seems to be this: (1) A state may not require a railroad company sued for negligently killing an animal to pay to the plaintiff, in addition to the damages proved and the ordinary costs, a reasonable attorney's fee, when it does not allow the corporation, when its defense is sustained, to recover a like attorney's fee from the plaintiff. (2) A state may require a railroad company sued for, and adjudged liable to, damages arising from fire caused by the operation of its road, to pay to the plaintiff, in addition to the damages proved and the ordinary costs, a reasonable attorney's fee, even if it does not allow the corporation, when successful in its defense, to recover a like attorney's fee from the plaintiff. The first proposition arises out of a suit brought on account of the killing by the railroad of a colt. The second proposition arises out of a suit brought on account of the destruction of an elevator and the property attached to it by fire caused by operating a railroad. Having assented in the Ellis Case to the first proposition, I cannot give my assent to the suggestion that the second proposition is consistent with the principles there laid down. Placing the present case beside the former case, I am not astute enough to perceive that the Kansas statute is consistent with the fourteenth amendment, if the Texas statute be unconstitutional. In the former case we held that a railroad corporation, sued for killing an animal, was entitled to enter the courts upon equal terms with the plaintiff, but that that privilege was denied to it when the Texas statute required it to pay a special attorney's fee if wrong, and did not allow it to recover any fee if right in its defense; and yet allowed the plaintiff to recover a special attorney's fee if right, and pay none if wrong. Upon these grounds it was adjudged that the parties did not stand equal before the law, and dià not receive its equal protection. In the pres ent case the Kansas statute is held to be constitutional, although the parties in suits em braced by its provisions are not permitted to enter the courts upon equal terms, and although the defendant railroad corporation is not allowed to recover an attorney's fee if right, but must pay one if found to be wrong in its defense, while the plaintiff is exempt from that burden if found to be wrong. In the former case it was adjudged that a state had no more power to deny to corporations the equal protection of the law than it has to individual citizens. In the present case it is adjudged that, in suits against a railroad corporation to recover damages arising from fire caused by the operation of the railroad, a rule of evidence may be applied against the corporation which is not applied in like actions against other corporations or against individuals for the negligent destruction of property by fire. In the former case it was held that, as the killing of the colt was not attributable to a failure upon the part of the railroad to perform any duty imposed upon it by statute, there could be no penalty for nonperformance. In the present case it is adjudged that the statute may impose a penalty upon the de fendant corporation for nonperformance, although the negligence imputed to It was not in violation of any statutory duty. Suppose the statute in question had been so framed as to give the railroad corporation a special attorney's fee if successful in its defense, but did not allow such a fee to an individual plaintiff when successful. I cannot believe that any court, federal or state, would hesitate a moment in declaring such an enactment void, as denying to the plaintiff the equal protection of the laws. If this be true, it would seem to follow that a statute that accords to the plaintiff rights in courts that are denied to his adversary should not be sustained as consistent with the doctrine of the equal protection of the laws. This conclusion, it seems to me, is inevitable unless the court proceeds upon the theory that a corporate person in a court of justice may be denied the equal protection of the laws when such protection could not be denied under like circumstances to natural persons. But we said in the Ellis*Case that "a state has no more power to deny to corporations the equal protection of the laws than it has to individual citizens," and that corporations are denied a right secured to them by the fourteenth amendment if "they cannot appeal to the courts as other litigants under like conditions and with like protection." There is another aspect in which the Kansas statute may be viewed. Taken in connection with the principles of general law recognized in that state, that statute, although not imposing any special duties upon railroad companies, in effect says to the plaintiffs, Matthews and Trudell, the owners of the elevator property,-indeed, it says, in effect, to every individual citizen, and, for that matter, to every corporation in the state: "If you are sued by a railroad corporation for damage done to its property by fire caused by your negligence or in the use of your property, the recovery against you shall not exceed the damages proved and the ordinary costs of suit. But if your property is destroyed by fire caused by the operation of the railroad belonging to the same corporation, and you succeed in an action brought to recover damages, you may recover, in addition to the damages proved and the ordinary costs of suit, a reasonable attorney's fee, and, if you fail in the action, no such attorney's fee shall be taxed against you." In my judgment, such discrimination against a litigant is not consistent with the equal protection of the laws secured by the fourteenth amendment. I submit that any other conclusion is inconsistent with Railway Co. v. Ellis, as well as with many other well-considered decisions. A reference to a few adjudged cases will suffice. The principles which in my judgment should control the determination of cases like the present one are well stated by the supreme court of Michigan in Wilder v. Railway Co., 70 Mich. 382, 38 N. W. 289. That case involved the validity of a provision in a statute of that state authorizing an attorney's fee o $25 to be taxed against a railroad company against which judgment should be rendered in an action for injuries to stock. The cour. said: "But the imposing of the attorney's ee of $25 as costs cannot be upheld. The egislature cannot make unjust distinctions between classes of suitors without violating the spirit of the constitution. Corporations have equal rights with natural persons as far as their privileges in the courts are concerned. They can sue and defend in all courts the same as natural persons, and the law must be administered as to them with the same equality and justice which it bestows upon every suitor, and without which the machinery of the law becomes the engine of tyranny. This statute proposes to punish a railroad company for defending a suit brought against it with a penalty of $25 if it fails to successfully maintain its defense. The individual sues for the loss of his cow. and if it is shown that such loss was occasioned by his own neglect, and through no fault of the company, and he thereby loses his suit, the railroad company can recover only the ordinary statutory costs of $10 in justice's court, but, if he succeeds because of the negligence of the company, the plaintiff is permitted to tax the $10 and an additional penalty of $25; for it is nothing more or less than a penalty. Calling it an 'attorney's fee' does not change its real nature or effect. It is a punishment to the company, and a reward to the plaintiff, and an incentive to litlgation on his part. This inequality and injustice cannot be sustained upon any principle known to the law. It is repugnant to our form of government and out of harmony with the genius of our free institutions. The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist. "The genius, the nature, and the spirit of our state government amounts to a prohibition of such acts of legislation, and the general principles of law and reason forbid them.' Durkee v. City of Janesville, 28 Wis. 464, 468; Calder v. Bull, 3 Dall. 386, 388. Here the legislature has granted special advantages to one class at the expense and to the detriment of another, and has undertaken to make the courts them. selves the active agents in this injustice, and to force them to impose penalties in the disguise of costs upon railroad companies for simply exercising, in certain cases, the common right of every person to make a defense in the courts when suits are brought against them." These principles were reaffirmed in Lafferty v. Railway Co., 71 Mich. 35, 38 N. W. 660, and Chair Co. v. Runnels, 77 Mich. 104, 111, 43 N. W. 1006. The validity of a statute of Alabama requiring a reasonable attorney's fee, not exceeding a named amount, to be taxed as part of the costs in certain actions, was involved in Railroad Co. v. Morris, 65 Ala. 193, 199. The supreme court of Alabama, referring to the fourteenth amendment as well as to the state constitution, said: "The clear legal effect of these provisions is to place all persons, natural and corporate, as near as prac ticable, upon a basis of equality in the enforcement and defense of their rights in courts of justice in this state, except so far as may be otherwise provided in the constitution. This right, though subject to legislative regulation, cannot be impaired or destroyed under the guise or device of being regu lated. Justice cannot be sold, or denied, by the exaction of a pecuniary consideration for its enjoyment from one, when it is given freely and open-handed to another, without money and without price. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right by the imposition of arbitrary, unjust, and odious discriminations, perpetrated under "if the plaintiff in any action for wages recover the sum claimed by him in his bill of, particulars, there shall be included in his costs such fee as the court may allow, but not in ex-cess of $5, for his attorney; but no such attorney fee shall be taxed in the costs unless said wages shall have been demanded in writ color of establishing peculiar rules for a particular occupation. Unequal, partial, and discriminatory legislation, which secures this right to some favored class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spiriting, and not paid within three days after such of the foregoing constitutional provisions. * The section of the Code under consideration (section 1715) prescribes a regulation of a peculiar and discriminative character, in reference to certain appeals from justices of the peace. It is not general in its provisions, or applicable to all persons, but it is confined to such as own or control railroads only; and it varies from the general law of the land, by requiring the unsuccessful appellant, in this particular class of cases, to pay an attorney's tax fee, not to exceed $20. A law which would require all farmers who raise cotton to pay such a fee, in cases where cotton was the subject-matter of litigation, and the owners of this staple were parties to the suit, would be so discriminating in its nature as to appear manifestly unconstitutional; and one which should confine the tax alone to physicians, or merchants, or ministers of the gospel, would be glaring in its obnoxious repugnancy to those cardinal principles of free government which are found incorporated, perhaps, in the bill of rights of every state constitution of the various commonwealths of the American government. We think this section of the Code is antagonistic to these provisions of the state constitution, and is void. Durkee v. City of Janesville, 28 Wis. 464; Gordon v. Association, 12 Bush, 110; Greene v. Briggs, 1 Curt. 327, Fed. Cas. No. 5,764; Cooley, Const. Lim. (3d Ed.) § 393. The section in question is also violative of that clause in section 1, art. 14, of the constitution of the United States, which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws.' This guaranty was said by Justice Bradley in Missouri v. Lewis, 101 U. S. 22, 30, to include 'the equal right to resort to the appropriate courts for redress.' 'It means,' as was further said by the court, 'that no person or class of persons should be denied the same protection which is enjoyed by other persons, or other classes, in the same place and under like circumstances.' The same court, in U. S. v. Cruikshank, 92 U. S. 542, 555, per Waite, C. J., used the following language in discussing the foregoing constitutional clause: The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states, and it still remains there.' Ward v. Flood, 48 Cal. 36." Coal Co. v. Rosser, 53 Ohio St. 12, 22-24, 41 N. E. 264, involved the validity of a section of the Revised Statutes of Ohio providing that demand; if the defendant appeal from any such judgment, and the plaintiff on appeal recover a like sum exclusive of interest from the rendition of the judgment before the justice, there shall be included in his costs such additional fee not in excess of $15 for his attorney as the court may allow." Rev. St. § 6563a, amended by Laws 1892, p. 59. The supreme court of Ohio said: "Under the statute, to entitle the plaintiff to have an attorney's fee taxed against the defendant, he is not required to show that the debtor had funds which he willfully or arbitrarily, or even carelessly, refused to apply to pay his debt, nor that a vexatious or dilatory defense had been made to defeat or delay the judgment. No other misconduct by the defendant is required than such as may be implied from a failure to comply with the peremptory written demand made upon him. Whether the debtor interposes or shows a vexatious defense, whether he makes an honest though unsuccessful one, or whether he makes none at all, but instead suffers judgment to be taken against him by default, are all equally immaterial. In either case, the statute denounces against him a penalty called an 'attorney's fee' if an action is brought on the claim, and judgment recovered for the sum demanded. The right to protect property is declared as well as that justice shall not be denied and every one entitled to equal protection. Judicial tribunals are provided for the equal protection of every suitor. The right to retain property already in possession is as sacred as the right to recover it when dispossessed. The right to defend against an action to recover money is as necessary as the right to defend one brought to recover specific real or personal property. An adverse result, in either case, deprives the defeated party of property." Again: "Upon what principle can a rule of law rest which permits one party or class of people to invoke the action of our tribunals of justice at will, while the other party or another class of citizens does so at the peril of being mulcted in an attorney's fee if an honest, but unsuccessful, defense should be interposed? A statute that; imposes this restriction upon one citizen or class of citizens only denies to him or them the equal protection of the law." In Railroad Co. v. Moss, 60 Miss. 641, 646, 647, 650-652, which involved the validity of a statute authorizing an attorney's fee to be taxed against the appellant, "whenever an appeal shall be taken from the judgment of any court in any action for damages brought by any citizen of this state against any corporation," the supreme court of Mississippi said: "All liti gants, whether plaintiff or defendant, should be regarded with equal favor by the law and before the tribunals for administering it, and should have the same right to appeal with others similarly situated. All must have the equal protection of the law and its instrumentalities. The same rule must exist for all in the same circumstances. There may be different rules for appeals and their incidents in different classes of cases determined by their nature and subjects, but not with respect to the persons by or against whom they are instituted. The subjection of every unsuccessful appellant to a charge for the fee of the attorney for the appellee would afford no ground for complaint as unequal, for it would operate on all, and such a rule for the unsuccessful appellant in certain causes of action, tested by the nature and subject of the actions, will be equally free from objection on the ground of its discriminating character; but to say that, where certain persons are plaintiffs and certain persons are defendants, the unsuccessful appellant shall be subjected to burdens not imposed on unsuccessful appellants generally, is to deny the equal protection of the law to the party thus discriminated against. It is to debar certain persons from prosecuting a civil cause before the appellate tribunals of this state. It is an unwarrantable interference with the 'due course of law' prescribed for litigants generally. It is doubtless true that the act was designed for the relief of citizens who became litigants in actions against corporations, because it applies only when a citizen is plaintiff, and it was assumed that the corporation would be appellant, and to avoid discrimination between parties to the same action it was made to operate on either party as appellant; but it sometimes occurs, and may very often, that the citizen plaintiff is an appellant, and in such cases the discrimination may operate oppressively on him. The supreme court of Alabama declared its act violative of the constitution of that state and of the United States, because of its unjust discrimination in establishing peculiar rules for a particular occupation, i. e. 'such as own or control railroads.' Our objection to the act under consideration is broader, as shown above, embracing in its scope the right of the citizen who sues a corporation, for whom we assert the right to appeal on the same terms granted to the plaintiffs in like cases, i. e. actions for damages, against whomsoever brought. The act was intended to deter from the appellate court corporations against whom judgments should be rendered for damages, or citizens of this state suing them for damages. It was conceived in hostility to citizens as plaintiffs or corporations as defendants in such actions. In either view, it is partial and discriminating against classes of litigants, denying them access to the appellate courts on the same terms and with the same incidents as other litigants who may be plaintiffs or defendants in actions for damages. It is not applicable to all suitors alike in the class of actions mentioned by it. An act which is partial in its operations, intended to affect particular individuals alone or to deprive them of the benefit of the general laws, is unwarranted by the constitution and is void.' 'A partial law, tending directly or indirectly to deprive a corporation or an individual of rights to property, or to the equal benefits of the general laws of the land, is unconstitutional and void.'" Cases almost without number could be cited to the same general effect. I refer to the following, as bearing more or less upon the general inquiry as to the scope and meaning of the clause in the fourteenth amendment prohibiting any state from denying to any person within its jurisdiction the equal protection of the laws: Jolliffe v. Brown, 14 Wash. 155, 44 Pac. 149; Randolph v. Supply Co., 106 Ala. 501, 17 South. 721; Insurance Co. v. Smith (Tex. Civ. App.) 41 S. W. 680; Railway Co. v. Williams, 49 Ark. 492, 5 S. W. 883; Railway Co. v. Outcalt, 2 Colo. App. 395, 31 Pac. 177; Railroad Co. v. Baty, 6 Neb. 37;* O'Connell v. Lumber Co. (Mich.) 71 N. W. 449; Railway Co. v. Wilson (Tex. Civ. App.) 19 S. W. 911; City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128; Pearson v. City of Portland, 69 Me. 278; Burrows v. Brooks (Mich.) 71 N. W. 460; Middleton v. Middleton, 54 N. J. Eq. 692, 35 Atl. 1065, and 37 Atl. 1106; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285. These adjudications rest substantially upon the grounds indicated by this court in Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064, where it was said that "the equal protection of the laws is a pledge of the protection of equal laws." I do not think that the adjudged cases in this court, to which reference has been made, sustain the validity of the statute of Kansas. In Railway Co. v. Humes, 115 U. S. 512, 522, 6 Sup. Ct. 113, this court sustained a statute of Missouri requiring every railroad corporation to erect and maintain fences and cattle guards on the sides of its roads, and for failure to do so subjecting it to liability in double the amount of damages occasioned thereby. The court said: "The omission to erect and maintain such fences and cattle guards in the face of the law would justly be deemed gross negligence, and if, in such cases, where injuries to property are committed, something beyond compensatory damages may be awarded to the owner by way of punishment for the company's negligence, the legislature may fix the amount or prescribe the limit within which the jury may exercise their discretion. The additional damages being by way of punishment, it is clear that the amount may be thus fixed; and it is not a valid objection that the sufferer instead of the state receives them. The power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government, and the mode in which they shall be enforced, whether at the suit of a private party or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters ⚫122 121 of legislative discretion. The statutes of nearly every state of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple, the actual damages. The objection that the statute of Missouri violates the clause of the fourteenth amendment which prohibits a state to deny to any person within its jurisdiction the equal protection of the laws is as untenable as that which we have considered. The statute makes no discrimination against any railroad company in its requirements. Each company is subject to the same liability, and from each the same security, by the erection of fences, gates, and cattle guards, is exacted, when its road passes through, along, or adjoining inclosed or cultivated fields or uninclosed lands. There is no evasion of the rule of equality where all companies are subjected to the same duties and liabilities under similar circumstances." In Railway Co. v. Mackey, 127 U. S. 205, 209, 8 Sup. Ct. 1163, this court held not to be unconstitutional a statute of Kansas making every railroad company liable for all damages done to one of its employés in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employé, to any person sustaining such damage. This court said: "Such legislation does not infringe upon the clause of the fourteenth amendment requiring equal protection of the laws, because it is special in its character. If in conflict at all with that clause, It must be on other grounds. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike, under the same conditions." In Railway Co. v. Emmons, 149 U. S. 364, 367, 13 Sup. Ct. 871, the court held to be valid a statute of Minnesota requiring railroad companies within a named time to build, or cause to be built, good and sufficient cattle guards at all wagon crossings, and good and substantial fences on each side of their respective roads, and that failure by any company to perform that duty should be deemed an act of negligence, for which it should be liable in treble the amount of damage sustained. This court said: "The extent of the obligations and duties*required of railroad corporations or companies by their charters does not create any limitation upon the state against imposing all such further duties as may be deemed essential or important for the safety of the public, the security of passengers and employés, or the protection of the property of adjoining owners. The imposing of proper penalties for the enforcement of such additional duties is unquestionably with in the police powers of the states. No contract with any person, individual or corporate, can impose restrictions upon the power of the states in this respect." In Railway Co. v. Mathews, 165 U. S. 1, 26, 17 Sup. Ct. 252, this court upheld a statute of Missouri providing that every railroad corporation owning and operating a railroad in that state should be responsible in damages to the owner of any property injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon its railroad; the railroad company being, however, authorized to procure insurance on the property upon the route of its railroad. It was there said: "The right of the citizen not to have his property burned without compensation is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the railroad corporations in taking precautions against the escape of fire from their engines might not afford sufficient protection to the owners of property in the neighborhood of the railroads. When both parties are equally faultless, the legislature may properly consider it to be just that the duty of insuring private property against loss or injury caused by the use of dangerous instruments should rest upon the railroad company, which employs the instruments and creates the peril for its own profit, rather than upon the owner of the property, who has no control over or interest in those instruments. The very statute now in question, which makes the railroad company liable in damages for property so destroyed, gives it, for its protection against such damages, an insurable interest in the property in danger of destruction, and the right to obtain insurance thereon in its own behalf; and it may obtain insurance upon all such property generally, without specifying any particular property.' Observe, that the Missouri statute gave the railroad company, for its protection against the new liability imposed upon it, the right to insure the property likely to be destroyed by fire. I do not perceive that the judgment now rendered finds support in any adjudication by this court. The above cases proceed upon the general ground that in the exercise of its police powers a state may, by statute, impose additional duties upon railroad corporations, with penalties for the nonperformance of such duties, and that such legislation is not, because of its special character, a denial of the equal protection of the laws. It is said to be of the essence of classification that "upon the class are cast duties and burdens different from those resting upon the general public." But here the state does not prescribe any additional duties upon railroad companies in respect of the destruction of property by fire arising from the operating of their roads. It simply imposes a penalty which it does not impose upon other litigants under like circumstances. It only prescribes a punishment for *123 |