Gulf Railway Company v. Ellis/Dissent Gray
Mr. Justice GRAY, with whom concurred Mr. Chief Justice FULLER and Mr. Justice WHITE, dissenting.

The CHIEF JUSTICE, Mr. JUSTICE WHITE, and myself are unable to concur in this judgment. The grounds of our dissent may be briefly stated.

Costs in civil actions at law are the creature of statute. From early times, there have been statutes making different rules as to costs, according to the nature of the issue, and the amount involved; and sometimes allowing costs to the prevailing party when plaintiff, and not when defendant. The whole matter of costs, including the party to or against whom they may be given, the items or sums to be allowed, and the right to costs as depending upon the nature of the suit, upon the amount or value of the thing sued for or recovered, or upon other circumstances, is, and always has been, within the regulation and control of the legislature, exercising its discretionary power, not oppressively to either party, but as the best interests of the litigants and of the public may appear to it to demand. Bac. Abr. 'Costs,' passim; Postan v. Stanway, 5 East, 261; Green v. Liter, 8 Cranch, 229, 242; Kneass v. Bank, 4 Wash. C. C. 106, Fed. Cas. No. 7,876; Lowe v. Kansas, 163 U.S. 81, 16 Sup. Ct. 1031.

The statute of the state of Texas, now in question, does but enact that any person having a valid bona fide claim, not exceeding $50, against a railroad corporation, for personal services or damages, or for overcharges on freight, or for destruction or injury of stock by its trains, and presenting the claim, verified by his affidavit, to the corporation, and, if it is not paid within 30 days, suing thereon in the proper court, and finally obtaining judgment for the full amount thereof in that court, or in any court to which the suit may be appealed, shall be entitled to recover, in addition to other costs, a reasonable attorney's fee (if he has employed an attorney) not exceeding $10, to be assessed and awarded by the court or jury trying the issue. Gen. Laws Tex. 1889, p. 131, c. 107; Supp. Sayles' Rev. Civ. St. p. 768, art. 4266a. In other words, if an nonest claim, of not more than $50, and coming within one of those classes of small claims which most commonly arise between individuals and railroad corporations, is not promptly paid when presented under oath, and the claimant is thereby compelled to resort to a suit, the corporation, if ultimately cast in the suit, must pay to the successful plaintiff a very moderate attorney's fee, as part of the costs of the litigation.

The legislature of a state must be presumed to have acted from lawful motives, unless the contrary appears upon the face of the statute. If, for instance, the legislature of Texas was satisfied, from observation and experience, that railroad corporations within the state were accustomed, beyond other corporations or persons, to unconscionably resist the payment of such petty claims, with the object of exhausting the patience and the means of the claimants, by prolonged litigation, and perhaps repeated appeals, railroad corporations alone might well be required, when ultimately defeated in a suit upon such a claim, to pay a moderate attorney's fee, as a just, though often inadequate, contribution to the expenses to which they had put the plaintiff in establishing a rightful demand. Whether such a state of things as above supposed did in fact exist, and whether, for that or other reasons, sound policy required the allowance of such a fee to either party, or to the plaintiff only, were questions to be determined by the legislature, when dealing with the subject of costs, except in so far as it saw fit to commit the matter to the decision of the courts.

The constitutionality of statutes allowing plaintiffs only to recover an attorney's fee, as part of the judgment, in particular classes of actions selected by the legislature, appears to have been upheld by the courts of most of the states in which it has been challenged. Railway Co. v. Mower, 16 Kan. 573, 582; Railroad Co. v. Yanz, Id. 583; Railway Co. v. Duggan, 109 Ill. 537; Vogel v. Pekoc, 157 Ill. 339, 42 N. E. 386; Dow v. Beidelman, 49 Ark. 455, 5 S. W. 718; Perkins v. Railway Co., 103 Mo. 52, 15 S. W. 320; Railway Co. v. Dey, 82 Iowa, 312, 340, 48 N. W. 98; Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280; Railway Co. v. Ellis, 87 Tex. 19, 26 S. W. 985; Cameron v. Railway Co., 63 Minn. 384, 65 N. W. 652.

It is to be regretted that so important a precedent as this case may afford for interference by the national judiciary with the legislation of the several states on little questions of costs should be established upon argument ex parte in behalf of the railroad corporation, without any argument for the original plaintiff. But it is hardly surprising that the owner of a claim for $50 only, having been compelled to follow up, through all the courts of the state, the contest over this $10 fee, should at last have become discouraged, and unwilling to undergo the expense of employing counsel to maintain his rights before this court. 

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