collected as part of the costs in the case. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any such person or corporation.

For similar provisions of Interstate Commerce Act,- see Interst Com. Act, § 8, post, Appendix B.

In any action to recover for damages by delay in transit, the burden of proof is on carrier to show that delay was not due to negligence, see ante, § 38.

Complaints before the Commission as to violations of this act,— see post, § 48, subd. 2, §§ 71, 72.

Forfeitures and penalties which may be recovered in behalf of the public for violations of any provision of this Act,- see post, §§ 56, 58, 59.

Summary proceedings by commissions to enforce obligations imposed by this Act,- see post, §§ 57, 74.

Who are common carriers,—see ante, § 2, notes [2]-[7].

Actions to recover excessive charges,- see ante, § 26, notes [29]-[38]. Recovery of penalties by the aggrieved party,- see ante, § 26, notes [68]-[73].

Remedy of shipper for discontinuance of switch connections by carrier, see ante, § 27, note [8].

Actions to recover for discrimination in rates and charges,— see ante, § 31, notes [81]-[88].

Restraining unlawful discriminations in rates,- see ante, § 31, note [82].

Actions by shipper unduly discriminated against in matters of facilities and service,- see ante, § 32, note [31].

Actions to recover for violations of long and short haul rule,— see ante, § 36, notes [37]-[41].

Actions for failure to furnish cars or for discrimination in furnishing the same,- see ante, § 37, notes [17]-[23].

Suits to enforce penalties for failure to file reports,- see post, § 46, note.

Actions to set aside unauthorized leases or agreements,- see post, § 54, note [11].

Recovery of excessive amount paid for gas,- see post, § 72, note [17].

[1] Right of action.

The lessor of a railroad is liable for damages resulting from its failure to see to it that its public duties are performed in the operation of its line

by a lessee.- Independent Ref. Assn. v. W. N. Y. & P. R. Co., 6 Inters. Com. R. 378.

A railroad is liable civilly for the unlawful acts of its servants, in the prosecution of the business entrusted to them, if done in the course of the employment, even though a departure from their express or implied authority. Palmeri v. Manhattan R. Co., 133 N. Y. 261, 30 N. E. 1001, 16 L. R. A. 136.

Where trustees for mortgage bondholders of a railroad buy such road on foreclosure and conduct the business of the same for the benefit of the bondholders, they may be prosecuted in a court of law for any liability incurred, and are not in the same position as receivers appointed by the court. Rogers v. Wheeler, 43 N. Y. 598, affg. s. c. 2 Lans. (N. Y.) 486.

[2] Whether statutory remedy supersedes existing remedies.

A statute will not be construed as taking away a common law right of action existing at the date of its enactment, unless the pre-existing right is so repugnant to the statute that its survival would in effect deprive the subsequent statute of its efficacy.- Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. R. (U. S.) 350, revg. s. c. 12 Tex. Ct. R. 498, 85 S. W. 1052.

Remedies afforded by statute are cumulative and in addition to those existing at common law. Atchison, T. & S. F. R. Co. v. D. & N. 0. R. Co., 110 U. S. 667, 4 Sup. Ct. R. (U. S.) 185, revg. 13 Fed. 546.

Under Interst. Com. Act, § 9, providing that any person claiming to be damaged by a violation of the Act, may make complaint to the Commission or bring suit to recover damages sustained, where a plaintiff pursues the former course, he is thereafter confined to the remedy provided by the Act.-Western N. Y. & P. R. Co. v. Pa. Ref. Co., 137 Fed. 343.

The special remedies afforded by the Interstate Commerce Act were intended to supplement, and not to supplant, the existing remedies.Tift v. So. R. Co., 123 Fed. 789.

The shipper's common law right of action for extortionate charges was superseded by the statutory remedies.- Winsor Coal Co. v. Ch. & A. R. Co., 52 Fed. 716.

The special remedies provided by the Interstate Commerce Act are cumulative.- Little Rock & M. R. Co. v. E. Tenn. V. & G. R. Co., 47 Fed. 771; appeal dismissed, 159 U. S. 698, 16 Sup. Ct. R. (U. S.) 189.

The fact that a city ordinance provides a penalty for failure of a gas company to comply with the conditions of the ordinance, does not prevent an aggrieved party from maintaining an action in his own behalf to re

cover for such damages as he may have suffered by reason of the wrongful act of the company.— Indiana Gas Co. v. Anthony, 26 Ind. App. 307, 58 N. E. 868.

A state may make the remedies afforded by its railroad commission act cumulative as against railroad corporations.- Stone v. Yazoo & M. V. R. Co., 62 Miss. 607.

[3] Validity of provision allowing attorney's fees.

A statute allowing reasonable attorney's fees to the plaintiff in a certain class of actions against railroad companies held valid.— Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96, 19 Sup. Ct. R. (U. S.) 609.

A provision in a Texas statute that in actions against railroad companies for labor, services, overcharges on freight, claims for stock killed or injured, etc., plaintiff may recover as costs in addition to his claim "all reasonable attorney's fees, provided he has an attorney employed in his case, not to exceed $10, to be assessed and awarded by the court or jury in trying the issue," is unconstitutional, as operating to deprive the carriers of property without due process of law, and denying them equal protection of the laws, in that it singles them out of all citizens and corporations and requires them to pay in certain cases attorney's fees to the parties sucessfully suing them, while it gives them no like or corresponding benefit when the suit terminates favorably to them.- Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. R. (U. S.) 255, revg. 87 Tex. 19, 26 S. W. 985; South & N. Ala. R. Co. v. Morris, 65 Ala. 193; St. Louis, I. M. & S. R. Co. v. Williams, 49 Ark. 492, 5 S. W. 883; Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006; Lafferty v. Ch. & W. M. R. Co., 71 Mich. 35, 38 N. W. 660; Joliffe v. Brown, 14 Wash. 155, 44 Pac. 149.

The Interstate Commerce Commission may not award the attorney's fee which the Interstate Commerce Act authorizes a court to award.— Council v. Western & A. R. Co., 1 Inters. Com. R. 292, 355, 638, 1 I. C. C. R. 339.

A statute of Arkansas provided that for a charge by a railroad in excess of the maximum fixed by the act, the railroad should forfeit a certain sum, and costs of suit, including a reasonable attorney's fee.-Held, that the attorney's fee was a part of the penalty imposed for a violation of the act and the statute was not objectionable as being partial or unequal legislation. Dow v. Beidelman, 49 Ark. 455, 5 S. W. 718; affd. 125 U. S. 680, 8 Sup. Ct. R. (U. S.) 1080.

A transportation statute allowing a reasonable attorney's fee to successful litigants against a carrier for violating the act is a valid police regulation, and also valid as in the nature of a penalty for non-com

pliance with the statute.- Peoria, D. & E. R. Co. v. Duggan, 109 Ill. 537.

A statute provides that when recovery is had for its violation, attorney's fees may be adjudged against the defendant, is not unconstitutional as granting to one suitor a privilege which is withheld from other citizens, since all citizens having litigation of the character indicated have equal rights to recover attorney's fees.- Burlington, C. R. & N. R. Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436n.

A statute providing that when recovery is had for its violation, attorney's fees are adjudged against the defendant is not open to the objection that it imposes a "penalty for exercising the right of defense" since, if the defense is established, no penalty is imposed.- Burlington C. R. & N. R. Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436n.

The provision in a transportation statute allowing an attorney's fee as part of the costs of a successful suit for violation of its provisions is constitutional.— Missouri, K. & T. R. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A. 765; Atchison, T. & S. F. R. Co. v. Matthews, 58 Kan. 447, 49 Pac. 602; affd. 174 U. S. 96, 19 Sup. Ct. R. (U. S.) 609; Missouri Pac. R. Co. v. Abney, 30 Kan. 41, 1 Pac. 385; Kansas Pac. R. Co. v. Mower, 16 Kan. 573; Cohn v. St. Louis, I. M. & S. R. Co., 181 Mo. 30, 79 S. W. 961.

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The extent of the litigation as well as the amount in controversy, is an important factor in determining the proper attorney's fee to be awarded. It must be a reasonable fee considering all the elements in the case affecting the proper amount of attorney's compensation.- Missouri, F. S. & G. R. Co. v. Shirley, 20 Kan. 660.

A statute allowing attorney's fees to the plaintiff upon recovery in certain actions against railroads, is unconstitutional as making unjust discriminations between classes of suitors and denying the railroads the equal protection of the law. Wilder v. Ch. & W. M. R. Co., 70 Mich. 382, 38 N. W. 289; Schut v. Ch. & W. M. R. Co., 70 Mich. 433, 38 N. W. 291.

An Illinois statute provided that, "whenever an appeal shall be taken from the judgment of any court, in an action for damages, brought by any citizen of this state against any corporation, a reasonable attorney's fee for the appellee shall be assessed by the court or justice of the peace, as the case may be, to the appellate court, and upon affirmance of the judgment, a judgment for the amount so assessed shall be rendered in favor of the appellee and against the appellant," etc.-Held, that this provision is unconstitutional as denying to the corporations the equal protection of the law.-Chicago, St. L. & N. O. R. Co. v. Moss & Co., 60 Miss. 641.

[4] Statutes allowing recovery of punitive damages.

A statute of Iowa, providing that a railway which fails to fence its road against live stock shall be liable for double the value of stock killed or damages caused thereto, by reason of its failure to so fence, is not denying to the company the equal protection of the law in violation of U. S. Constitution, 14 Amendment.― Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. R. (U. S.) 207.

A statute giving to anyone who is charged excessive fares by a railroad company the right to recover the excess and $50 in addition is penal.— Fisher v. N. Y. C. & H. R. R. Co., 46 N. Y. 644.

A statute making certain acts unlawful on the part of a common carrier and permitting a person injured by a violation thereof to recover treble the injuries sustained has for its purpose punishment, not indemnity. Langdon v. N. Y. L. E. & W. R. Co., 58 Hun (N. Y.), 122, 11 N. Y. Supp. 514, affg. 9 N. Y. Supp. 245.

An act allowing double damages to plaintiffs recovering in a certain class of actions against railroads, in so far as it gives additional damages, is punitory, and vests no right in an injured party which the legislature cannot, before judgment, take away by repeal or amendment.-Bay City & S. R. Co. v. Austin, 21 Mich. 390.

A statute allowing recovery of more than the value of the property is not penal but remedial, the object being not so much the punishment of defendant as the indemnification of plaintiff.-Aylsworth v. Curtis, 19 R. I. 517, 34 Atl. 1109.

[5] Effect of receivership on right of action.

An action under a statute requiring a railroad to fence its right of way, etc., will lie, even though the road is in the hands of a federal receiver.- Ohio & M. R. Co. v. Russell, 115 Ill. 52, 3 N. E. 561.

[6] Limitation of action.

The Interstate Commerce Act prescribing no limitation of time within which actions thereunder must be brought, such actions must be governed, as to limitation, by the statutes of the state wherein they are brought.- Ratican v. Terminal R. Assn., 114 Fed. 666.

An act allowing an attorney's fee to be taxed as part of the costs, in addition to treble damages, is penal, not compensatory, and hence is governed by limitations on statutory penalties.- Baker Wire Co. v. Ch. & N. W. R. Co., 106 Iowa, 239, 76 N. W. 665.

[7] Pleadings.

In an action by a shipper against a carrier for violations of the Interst. Com. Act, § 2, the petition to recover is sufficient if it states facts which