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Kansas City Southern Railway Company v. Marx
Riddick, J. (after stating the facts). The only question raised by- this 'appeal is whether, in an ordinary action by a passenger against a railway company to recover damages for injuries received on account of the negligence of an employee of the company, and when no statutory regulation of the state has been violated, the plaintiff may, if he makes out his case, recover, in addition to his damages, a reasonable attorney’s fee.
The statute of 1887 provides that in all actions against railway companies “for the violation of any law regulating the transportation of freight or passengers” the plaintiff, if successful, shall also recover a reasonable attorney’s fee, to be taxed as part of the costs.
But this' provision, we think, refers to actions against railway companies for violations of statutory regulations of the state in regard to transportation of freight and passengers, for, if we should hold that it applied to all actions arising against railroads in the carriage of freight or passengers, whether any statute had been violated or not, it is doubtful if it would be a constitutional law (Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150; St. Louis, I. M. & So. Ry.
Co. v. Williams, 49 Ark. 492) ; for the legislature cannot single out railroad companies, and tax them with attorney’s fees in cases where judgments are recovered against them, when other defendants are not thus taxed, unless there be some reason upon which to found the discrimination so made.
Statutes allowing attorney’s fees to be taxed against railway companies where judgments are recovered against them for the violation of statutory regulations are upheld on the ground that such a fee is in the nature of a penalty imposed upon the company for failure to comply with the police regulations of the state. But in this case no statute was violated, and there is no reason why a penalty should be imposed. Dow v. Beidelman, 49 Ark. 455; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150.
Statutes taxing attorney’s fees against defendants in common with other statutes imposing penalties should be strictly construed, and, looking at the statute in that light, we are of the opinion that it does not apply to cases like the one before us where no statute has been violated. The judgment for the attorney’s fee is reversed, and the motion therefor dismissed.