dissenting.
I am unable to agree with the majority of the court • as to the' constitutionality of that feature of Chapter 3747, act of 1887, allowing to mechanics, in suits for the enforcement of the liens that the law gives them upon the subject-matter of their labor, besides the costs of such suits, a distinctive attorney’s fee in the event of his succeeding in the suit, leaving his opponent, as it does, with the unequal burden of paying his own attorney’s fee in the event the mechanic shall fail in the suit. Our constitution, it is true, expressly enjoins upon the legislative department the duty to provide an adequate lien to secure the wages of mechanics, but it nowhere requires that the judicial means to be provided for the enforcement of such liens shall give to the lienor an un*230•equal and inequitable advantage before the law, nor is such discrimination at all necessary to a perfect compliance with the constitutional requirement to give them an adequate lien on the subject-matter of their labor. While I do not agree with much that is said in the case of Gulf, Colorado and Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255, yet I think that from the facts in that case the gist of the conclusion reached therein tends more strongly to overturn than to uphold the propriety of our statute under discussion. My view is that the assertion in our own constitutional declaration of rights, to the effect that “all men are equal before the law,” and the inhibition of Article XIV of the Federal Constitution against the denial by the States to any person of the equal protection of the laws, plainly forbids any such discrimination between suitors or classes of suitors before the courts. To my mind the clear intent and purpose of both of these provisions is that no individual or class of' individuals shall be given any undue advantage over any other individual or class of individuals either in the substance of the law itself, nor in the judicial procedure provided.for the enforcement of such law. In other words, all men shall be equal, not only in and by the law as enacted by the legislature, but before the courts and in the procedure provided for the execution and enforcement of such law. Any law that says, in effect, to one suitor or class of suitors you shall have from your adversary in case of recovery your just claim and all court costs, and, besides, your attorneys’ fee, but your adversary, though he shall prove successful, and though he may establish the fact that your claim was fraudulent and unreal, and conceived in malice for the avowed purpose of subjecting him to the expense of employing skilled professional assistance to defend against and expose the fraud, shall recover noth*231ing but his bare court costs, and nothing to remunerate him for the expense you have designedly forced him to incur, seems to me to be as flagrant an infraction of these constitutional inhibitions as can well be conceived. But this statute goes further. It fixes an arbitrary minimum sum that shall be awarded to the mechanical suitor for his attorney fee; and, in effect, says that no smaller sum than that prescribed shall be awarded for such fee, regardless of the amount at which the favored suitor can and does in fact secure the services of the attorney employed. It says, in effect, to the favored suitor, when your litigation is in the Circuit Court, although your actual recovery therein may be barely nominal, you shall be awarded an attorney’s fee of not less than twenty-five dollars, even though you may have actually secured such attorney’s services at the agreed price of ten dollars. In such a case'the overplus of fifteen dollars out of the prescribed award for attorneys’ fees is forced from the non-mechanical suitor, under the guise of attorney’s fees, but in reality goes into the pockets of the favored litigant, operating simply as a legal penalty levied upon the non-favored suitor as punishment for his tardiness in discharging this highly favored class of obligation. A law that makes such a state of affairs possible metes out but partial justice, and puts the citizen upon grossly unequal ground before the law, overflowing the cup of its protection to the one and but half filling it as to the other.