234 U.S. 412

34 S.Ct. 790

58 L.Ed. 1377


No. 604.

Submitted February 24, 1914.

Decided June 8, 1914.

Messrs. Joseph M. Bryson, Aldis B. Browne, Alexander S. Coke, and A. H. McKnight for plaintiff in error.

[Argument of Counsel from page 413 intentionally omitted]

No counsel appeared for defendant in error.

[Argument of Counsel from page 414 intentionally omitted]

Mr. Justice Pitney delivered the opinion of the court:


In this case the plaintiff below (now defendant in error) recovered a judgment for $3.50 damages for loss of certain freight that was shipped from St. Louis, Missouri, consigned to plaintiff at Como, Texas, and delivered by the initial carrier to defendant for transportation to destination; the loss having occurred on defendant's line in Texas. The judgment includes an attorney's fee of $10, allowed by virtue of the local statute approved March 19, 1909, Laws, p. 93, Tex. Rev. Civ. Stat. 1911, arts. 2178 and 2179, which was under consideration in Missouri, K. & T. R. Co. v. Cade, decided May 11, 1914, 233 U. S. 642, 58 L. ed. ——, 34 Sup. Ct. Rep. 678, and is set forth verbatim in a marginal note to the opinion in that case. The controversy turns upon the allowance of the attorney's fee, the same Federal questions having been raised in the state court and in this court that were raised in the Cade Case. So far as the 14th Amendment is concerned, our opinion in that case renders further discussion unnecessary. But since the claim of the present plaintiff was based upon freight lost in interstate commerce, we must now pass upon the question whether the allowance of an attorney's fee in such a case, pursuant to the Texas statute, is repugnant to the commerce clause of the Federal Constitution, or the act to regulate commerce and amendments thereof.


By way of preface, we should repeat that the state court of last resort has construed the act as relating only to the collection of claims not exceeding $200 in amount; that by its terms it applies to claims 'against any person or corporation doing business in this state, for personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation, its agents or employees' [art. 2178]; and that, in the Cade Case, we have held it to be a police regulation designed to promote the prompt payment of small but well-founded claims, and to discourage unnecessary litigation in respect to them; and have held it, in its general application, to be not repugnant to either the 'equal protection' or the 'due process' clauses of the 14th Amendment.


Such being the character of the statute, and it having a broad sweep which only incidentally includes claims arising out of interstate commerce, it follows that it cannot be held to constitute a direct burden upon such commerce, and hence repugnant to the commerce clause of the Contitution, or otherwise in conflict with the Federal authority, in the absence of legislation by Congress covering the subject. To this extent, the case is controlled by the decision in Atlantic Coast Line R. Co. v. Mazursky, 216 U. S. 122, 54 L. ed. 411, 30 Sup. Ct. Rep. 378, where it was held that a South Carolina statute which required common carriers doing business in the state to settle claims for loss or damage to property while in the possession of the carrier within forty days, in case of shipments wholly within the state, and within ninety days, in case of shipments from without the state, and that failure to adjust and pay a claim within the prescribed period should subject the carrier to a penalty of $50 in case the full amount claimed was recovered, as the statute was applied to a claim for loss or damage to interstate freight while in the possession of the carrier within the state, was not an unwarrantable interference with interstate commerce, in the absence of legislation by Congress, but was rather a regulation in aid of the performance by the carrier of its legal duty. The decision was rested upon the authority and reasoning of Sherlock v. Alling, 93 U. S. 99, 104, 23 L. ed. 819, 820; Smith v. Alabama, 124 U. S. 465, 476, 31 L. ed. 508, 511, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Western U. Teleg. Co. v. James, 162 U. S. 650, 660, 40 L. ed. 1105, 1108, 16 Sup. Ct. Rep. 934; Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 137, 42 L. ed. 688, 692, 18 Sup. Ct. Rep. 289; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 491, 48 L. ed. 268, 273, 24 Sup. Ct. Rep. 132; Missouri P. R. Co. v. Larabee Flour Mills Co. 211 U. S. 612, 623, 53 L. ed. 352, 361, 29 Sup. Ct. Rep. 214. And see Western U. Teleg. Co. v. Commercial Mill Co. 218 U. S. 406, 416, 54 L. ed. 1088, 1091, 36 L.R.A.(N.S.) 220, 31 Sup. Ct. Rep. 59, 21 Ann. Cas. 815; Western U. Teleg. Co. v. Crovo, 220 U. S. 364, 55 L. ed. 498, 31 Sup. Ct. Rep. 399; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 402, 408, 410, 57 L. ed. 1511, 1542, 1545, 1546, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729.


But the 'act to regulate commerce' (act of February 4, 1887, 24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154) is now invoked, together with its amendments, and especially that part of the Hepburn act of June 29, 1906, known as the Carmack amendment (34 Stat. at L. 584, 595, chap. 3591, U. S. Comp. Stat. Supp. 1911, pp. 1288, 1307); and it remains to be considered whether the Texas statute, as applied to claims for loss or damage to interstate freight while in the possession of the carrier in the state of Texas, is repugnant to this Federal legislation. It is, of course, settled that when Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, state laws upon the same subject are superseded. Northern P. R. Co. v. Washington, 222 U. S. 370, 378, 56 L. ed. 237, 239, 32 Sup. Ct. Rep. 160; Erie R. Co. v. New York, decided May 25, 1914, 234 U. S. 671, 58 L. ed. ——, 34 Sup. Ct. Rep. 756. But it is equally well settled that the mere creation of the Interstate Commerce Commission, and the grant to it of a measure of control over interstate commerce, does not of itself, and in the absence of specific action by the Commission or by Congress itself, interfere with the authority of the states to establish regulations conducive to the welfare and convenience of their citizens, even though interstate commerce be thereby incidently affected, so long as it be not directly burdened or interfered with. Missouri P. R. Co. v. Larabee Flour Mills Co. 211 U. S. 612, 623, 53 L. ed. 352, 361, 29 Sup. Ct. Rep. 214; Southern R. Co. v. Reid, 222 U. S. 424, 437, 56 L. ed. 257, 260, 32 Sup. Ct. Rep. 140.


In the Larabee Mills Case it was held that the railroad company, by engaging in the business of a common carrier, had become subject to certain duties imposed upon it by general law, including the obligation to treat all shippers alike; that the enforcement of this duty and the regulation of matters pertaining to it were within the authority of the state, although interstate commerce was thereby indirectly affected; and that until specific action by Congress or the Commission, the control of the state over such incidental matters remained undisturbed. Hence, a decision by the supreme court of Kansas, awarding a mandamus to require the company to restore the service of transferring cars between the lines of another railroad and the Larabee mills and elevator, in aid of interstate and intrastate shipments alike, was affirmed. This case arose after the enactment of the Hepburn act.


On the other hand, it was held in the Reid Case that since Congress had taken control of the subject of the making of rates and charges, and by § 2 of the Hepburn act had forbidden the carrier to engage or participate in transportation unless the rates, fares, and charges had been filed and published in accordance with the provisions of the act, a state law requiring railroad companies to receive freight for transportation whenever tendered at a regular station, and to forward the same over the route selected by the person offering the shipment, under a penalty of $50 a day, besides all damages incurred, was in necessary conflict, since it required the carrier to do the very things forbidden by the Federal law.


So, in Chicago, R. I. & P. R. Co. v. Hardwick Farmers Elevator Co. 226 U. S. 426, 57 L. ed. 284, 46 L.R.A.(N.S.) 203, 33 Sup. Ct. Rep. 174, it was held that since, by the Hepburn act, Congress had legislated concerning deliveries of cars in interstate commerce by carriers subject to the act, specifically requiring the carrier to provide and furnish 'transportation' (cars being embraced within the definition of the term) upon reasonable request, the authority of the state of Minnesota to legislate upon the subject of the delivery of cars when called for to be used in interstate traffic was superseded. And see Yazoo & M. Valley R. Co. v. Greenwood Grocery Co. 227 U. S. 1, 57 L. ed. 389, 33 Sup. Ct. Rep. 213.


These cases recognize the established rule that a state law enacted under any of the reserved powers—especially if under the police power—is not to be set aside as inconsistent with an act of Congress, unless there is actual repugnancy, or unless Congress has, at least, manifested a purpose to exercise its paramount authority over the subject. The rule rests upon fundamental grounds that should not be disregarded. In Reid v. Colorado, 187 U. S. 137, 148, 47 L. ed. 108, 114, 23 Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506, the court, speaking by Mr. Justice Harlan, said: 'It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said and the principle has been often reaffirmed—that 'in the application of this principle of supremacy of an act of Congress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.' Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247.' In Savage v. Jones, 225 U. S. 501, 533, 56 L. ed. 1182, 1194, 32 Sup. Ct. Rep. 715, the court said: 'When the question is whether a Federal act overrides a state law, the entire scheme of the statute must, of course, be considered, and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished,—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power [citing cases]. But the intent to supersede the exercise by the state of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state.' [Citing many cases.]


With respect to the specific effect of the Carmack amendment (set forth in the margin*, it has been held, in a series of recent cases (Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148; Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513, 57 L. ed. 323, 33 Sup. Ct. Rep. 155; Chicago, St. P. M. & O. R. Co. v. Latta, 226 U. S. 519, 57 L. ed. 328, 33 Sup. Ct. Rep. 155; Wells, F. & Co. v. Neiman-Marcus Co. 227 U. S. 469, 57 L. ed. 600, 33 Sup. Ct. Rep. 267; Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 57 L. ed. 683, 33 Sup. Ct. Rep. 391; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 57 L. ed. 690, 33 Sup. Ct. Rep. 397. Chicago, R. I. & P. R. Co. v. Cramer, 232 U. S. 490, 58 L. ed. ——, 34 Sup. Ct. Rep. 383; Great Northern R. Co. v. O'Connor, 232 U. S. 508, 58 L. ed. ——, 34 Sup. Ct. Rep. 380; Boston & M. R. Co. v. Hooker, 233 U. S. 97, 58 L. ed. ——, 34 Sup. Ct. Rep. 526), that the special regulations and policies of particular states upon the subject of the carrier's liability for loss or damage to interstate shipments, and the contracts of carriers with respect thereto, have been superseded.


But the Texas statute now under consideration does not in anywise either enlarge or limit the responsibility of the carrier for the loss of property intrusted to it in transportation, and only incidentally affects the remedy for enforcing that responsibility. As pointed out in the Cade CASE, 233 U. S. 642, 58 L. ED. ——, 34 Sup. ct. rep. 678, IT IMPOSEs not a penalty, but a compensatory allowance for the expense of employing an attorney, applicable in cases where the carrier unreasonably delays payment of a just demand and thereby renders a suit necessary. In fact and effect, it merely authorizes a moderate increment of the recoverable costs of suit in the large class of cases that are within its sweep, among which are incidentally included claims for freight lost or damaged in interstate commerce.


It is true that in Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 208, 55 L. ed. 167, 183, 31 L.R.A.(N.S.) 7, 31 Sup. Ct. Rep. 164 (a case arising since the Hepburn act), it was held that § 8 of the act of February 4, 1887, does not authorize the allowance of a counsel or attorney's fee in an action for loss of property intrusted to the carrier for purposes of transportation. But that is far from holding that it is not permissible for a state, as a part of its local procedure, to permit the allowance of a reasonable attorney's fee, under proper restrictions. In claims of this character, based upon the ordinary liability of the common carrier, although regulated by the commerce act, the state courts have full jurisdiction, and some differences respecting the allowance of costs and the amount of the costs are inevitable, as being peculiar to the forum. And we think that where a state, as in this instance, for reasons of internal policy, in order to offer a reasonable incentive to the prompt settlement of small but well-founded claims, and as a deterrent of groundless defenses, establishes by a general statute otherwise unexceptionable the policy of allowing recovery of a moderate attorney's fee as a part of the costs, in cases where, after specific claim made and a reasonable time given for investigation of it, payment is refused, and the claimant succeeds in establishing by suit his right to the full amount demanded, the application of such statute to actions for goods lost in interstate commerce is not inconsistent with the provisions of the commerce act and its amendments. The local statute, as already pointed out, does not at all affect the ground of recovery, or the measure of recovery; it deals only with a question of costs, respecting which Congress has not spoken. Until Congress does speak, the state may enforce it in such a case as the present.


Judgment affirmed.


That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.

That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.

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