Marsh & Marsh v. Chicago & Northwestern Railway Co.

Cornish, J.,

dissenting.

A law which requires a litigant to pay the attorney’s fees of the opposing party if he is defeated, and which does not require the opposing party to pay his attorney’s fees if he wins is in the nature of a law imposing a penalty. No other conclusion is reasonable. It1 would amount to a denial of the equal protection of the laws, unless enacted as a police regulation to prevent a common wrong in the refusal by carriers to entertain and pay just claims. I seriously doubt the existence of such customary wrong at the present time.

To me it is equally apparent that such a law must be a burden upon commerce. As a matter of business prudence, the common carrier will pay doubtful claims, small in amount, rather than run the risk of having finally to pay not only the claim, but, in addition thereto, an attorney’s fee that may amount to more than the claim. *663The result must be that in states having- the law the emoluments going to the carrier for its service must be less than in those states not having the law.

It cannot be assumed that resistance of a claim is wrong, although it is finally upheld in court. Such presumption arises only by relation.

The law does not denominate the attorney’s fees as costs. If it did, and the amount was limited and the right restricted, a different question might arise. This fact, it appears to me, distinguishes the case in hand from the federal cases cited. The statute uses the words, “reasonable fee. ’ ’. The word ‘ ‘ reasonable, ’ ’ under the previous decisions of this court, is hardly restrictive. If $100 worth of service is performed by the attorney in prosecuting a $10 or $25 claim, his reasonable fee is $100.