234 U.S.

412
34 S.Ct. 790
58 L.Ed. 1377

MISSOURI, KANSAS, & TEXAS RAILWAY COMPANY OF

TEXAS, Plff. in Err.,
v.
S. O. HARRIS.
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.
2

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.
4

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.
6

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 powersespecially if under the police poweris 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 reaffirmedthat '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 effectthe 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.]
9

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.

10

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.

11

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.
12

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.