The Supreme Court of Missouri having necessarily decided that
the Kansas City Court of Appeals, in passing upon the claim of
immunity in this case, was the final court of Missouri where such
question could be decided, it follows that the writ of error
properly ran to the Kansas City Court of Appeals, and that the
claim of absence of jurisdiction was without foundation.
For the reasons given in the opinion of the court in
Tullock
v. Mulvane, ante, 184 U. S. 497,
that there was error committed by the Kansas City Court of Appeals
in affirming the action of the trial court in allowing in the
judgment rendered by it, attorneys' fees as an element of damage
upon the injunction bond, contrary to the controlling rule on this
subject enunciated by this Court, by which the courts of the United
States are governed in requiring the execution of such
instruments.
The action below was brought by Elliott in the state Circuit
Court of Cooper County, Missouri, against the railway company,
plaintiff in error herein. Recovery was sought upon an injunction
bond given in an equity cause in a suit in the Circuit Court
Page 184 U. S. 531
of the United States for the Central Division of the Western
District of Missouri. The railway company was complainant in the
equity cause, and Elliott was defendant. The circuit court of the
United States, as the result of a mandate of the circuit court of
appeals, entered an order dissolving the injunction, and thereupon
this action was equity cause, and Elliott was defendant. The were
embraced in the condition of the bond were averred to consist of
payments made for attorneys' fees, traveling and other similar
expenses of the plaintiff, asserted to have been disbursed during
the course of the litigation in the United States court.
The answer consisted of a general denial, and alleged that the
equity suit in which the bond was given was made necessary to
enable the defendant to make its defense to an action at law, which
had prior to the equity suit been brought against the railway
company by Elliott. The cause was tried by the court without a
jury. It appeared on the trial that, in dismissing the bill in the
equity cause, the statutory allowance to attorneys and other costs
had been taxed and paid by the complainants in the equity cause in
the United States circuit court. No objection was interposed at the
trial to evidence introduced for the plaintiff as to the value of
attorneys' services and the other sums disbursed for the expenses
alleged in the petition. At the close of the trial, the court, over
the objection of the defendant, declared the law to be that the
plaintiff was entitled to recover his reasonable personal expenses
and reasonable attorneys' fees incurred for the services of
attorneys in procuring the dissolution of the injunction. The
following, among other prayers asked by the defendant, were
refused:
"2. The court declares the law to be that the plaintiff is not
entitled to recover as damages on the injunction bond sued on any
sum which he may have paid out or become liable for as attorneys'
fees."
"5. The court declares the law to be that the plaintiff, having
received the amount taxed in his favor as attorneys' fees as part
of the costs in the equity suit mentioned in the pleadings and
evidence in this case, he cannot now recover anything on account of
attorneys' fees in this case. "
Page 184 U. S. 532
Judgment having been entered in favor of plaintiff and a motion
for a new trial having been overruled, an appeal was taken to the
Kansas City Court of Appeals, and the judgment was affirmed. In the
course of its opinion, the court recited the contentions of the
defendant and held each of them to be untenable. These contentions
were thus stated by the court:
"1. Defendant's objections to the judgment below may be thus
stated: first, that there was no breach of the conditions of the
bond in that it was not alleged or proved that any damages had been
previously adjudged against the defendant, whereas the condition of
the bond is that defendant 'should pay all sums of money damages
and costs that shall be adjudged against it,' etc., and,
secondly, it is contended that as the injunction bond was given
in a proceeding pending in the United States court, the damages
must be fixed and determined according to the rules and practice of
the federal courts, that attorneys' fees are not there considered
elements of damage in suits on injunction bonds, and that therefore
our state courts should apply the same rule in suits on bonds given
in the federal courts, and thirdly, it is insisted that the
trial court erroneously allowed as damages attorneys' fees for
defending the entire case -- that the injunction was merely
incidental to the principal case, and no attorneys' fees were paid
to secure its dissolution."
A motion for a rehearing was thereafter filed in which, among
other things, it was contended that the cause involved a federal
question
"for the reason that the controversy in this suit arises under
the authority of the United States, and under the laws of the
United States governing and applicable to United States
courts,"
and the court was asked, in the event that it should refuse to
grant a rehearing, to transfer the case to the Supreme Court of the
State of Missouri,
"for the reason that a federal question is involved and because
the subject of the controversy of this suit arises under the
authority of the United States and under the exercise of such
authority, and under the laws of the United States governing and
controlling the courts of the United States and the proceedings
therein."
The motion for a rehearing having been overruled, it appears
Page 184 U. S. 533
from a stipulation contained in the record that an application
was made to the Supreme Court of the State of Missouri for a writ
of prohibition against the judges of the said Kansas City Court of
Appeals to restrain the further exercise of jurisdiction in the
cause and to require the record and proceedings to be certified to
the supreme court. This application was denied. 154 Mo. 300.
Thereupon, the present writ of error was allowed, and the record
of the cause was brought here from the Kansas City Court of
Appeals.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The proposition relied upon to secure the reversal of the
judgment below is that the state court erroneously allowed, as an
element of damage upon an injunction bond given in a court of the
United States, the sum of alleged counsel fees for procuring a
dissolution of the injunction, and that, as such fees, under the
rule prevailing in the equity courts of the United States are not
properly allowable, therefore the state court denied an immunity
asserted in favor of the defendant below and arising from an
authority exercised under the United States.
We are at the outset met by an objection that there is no
jurisdiction to review the judgment of the Kansas City Court of
Appeals. It is contended on behalf of the defendant in error that
the federal question relied upon was not raised below, and
therefore is not reviewable here.
The general rule undoubtedly is that those federal questions
which are required to be specially set up and claimed must be so
distinctly asserted below as to place it beyond question that the
party bringing the case here from the state court intended to and
did assert such a federal right in the state court. But
Page 184 U. S. 534
it is equally true that, even although the allegations of
federal right made in the state court were so general and ambiguous
in their character that they would not in and of themselves
necessitate the conclusion that a right of a federal nature was
brought to the attention of the state court, yet if the state court
in deciding the case has actually considered and determined a
federal question, although arising on ambiguous averments, then, a
federal controversy having been actually decided, the right of this
Court to review obtains.
Oxley Stave Co. v. Butler,
166 U. S. 648,
166 U. S. 660.
All that is essential is that the federal questions must be
presented in the state court in such a manner as to bring them to
the attention of that tribunal.
Chicago &c. Ry. Co. v.
Chicago, 166 U. S. 226.
And, of course, where it is shown by the record that the state
court considered and decided the federal question, the purpose of
the statute is subserved. And so controlling as to the existence of
the federal question is the fact that it was actually considered
and decided by the state court that it has been held, although the
general rule is that the raising of a federal question in a
petition for rehearing in the highest court of the state is too
late, yet, when a question is thus raised and it is actually
considered and decided by the state court, the right to review
exists.
Mallett v. North Carolina, 181 U.
S. 589,
181 U. S.
592.
Now it plainly appears that the Kansas City Court of Appeals
considered that there was presented to it for decision the question
whether, in an action brought in a state court on an injunction
bond given in a court of the United States, the state court was
bound to apply to such a bond the rule prevailing in the courts of
equity of the United States --
viz., that attorneys' fees
are not a proper element of damage. We say this is undoubted since
the opinion of the Kansas City Court of Appeals recites that such
was the contention, and court proceeded to consider and decide it.
That this contention involved a claim of immunity under an
authority exercised under the United States, reviewable in this
Court we have recently decided in
Tullock v. Mulvane. True
it is that the Kansas City Court of Appeals held, contrary to the
rule announced in the
Tullock case, that the state court
was not bound to apply the rule of damages prevailing
Page 184 U. S. 535
in the courts of the United States, and in effect, while so
concluding, decided that the claim that the bond should be enforced
according to the rule prevailing in the courts of the United States
involved no federal question. But the fact that the state court,
whilst deciding the federal question, erroneously held that it was
not a federal one does not take the case out of the rule that,
where a federal question has been decided below, jurisdiction
exists to review. The result of the contrary doctrine would be this
-- that no case where the question of federal right had been
actually decided could be reviewed here if the state court, in
passing upon the question, had also decided that it was nonfederal
in its character. The assertion that a federal right was not raised
below is therefore without merit.
It is, however, insisted that, as the writ of error in this case
was directed to the Kansas City Court of Appeals, there is no
jurisdiction, because if there was a federal question presented,
that court was not, under the Constitution of the State of
Missouri, the highest court of the state in which a decision on
such question could have been had.
The Kansas City Court of Appeals was created by an amendment to
the Constitution of Missouri adopted in 1884. Ref.Stat. of
Missouri, 1899, vol. 1, p. 92. By section 4 of the amendment, the
said court was given the same jurisdiction over lower courts within
certain territory -- embraced within which was Cooper County -- as
was possessed by the St. Louis Court of Appeals. As provided by a
prior constitution, that of 1865, and continued by the Constitution
of 1875, the St. Louis Court of Appeals was a court of general
appellate jurisdiction, but its judgments were not final in certain
cases, among which were:
a, cases where the amount in
dispute, exclusive of costs, exceeded the sum of $2,500,
b, cases involving the construction of the Constitution of
the United States or of the State of Missouri,
c, cases
where "the validity of a treaty or statute of or authority
exercised under the United States is drawn in question," as well as
in other enumerated cases not necessary to be particularly referred
to. In such cases, where the jurisdiction of the St. Louis Court of
Appeals was not final, the judgment
Page 184 U. S. 536
of the St. Louis Court of Appeals was reviewable by the Supreme
Court of Missouri.
Ib. art. VI, sec. 12, p. 87.
By the amendment to the Constitution of 1884 by which the Kansas
City Court of Appeals was created, in cases where the action of the
St. Louis Court of Appeals had been theretofore reviewable by the
Supreme Court of Missouri, it was provided that the St. Louis Court
of Appeals should no longer have appellate jurisdiction, but that
writs of error in such cases should run directly from the Supreme
Court to the trial courts, and this provision was made applicable
to the Kansas City Court of Appeals which the amendment created. By
the amendment in question, superintending control over the trial
courts in such cases was conferred upon the Supreme Court.
Ib., sec. 5, p. 93. It thus resulted that the Kansas City
Court of Appeals, within the area of territory over which its
jurisdiction extended, had no appellate jurisdiction in cases where
the amount in dispute, exclusive of costs, exceeded $2,500, and
where the cases involved the construction of the Constitution of
the United States or of the state, and cases where was drawn in
question the validity of a treaty or statute of or authority
exercised under the United States, and in other cases not necessary
to be mentioned.
By the amendment to the constitution of 1884, the Supreme Court
of Missouri was expressly, moreover, given general superintending
control over the courts of appeal, by mandamus, prohibition, and
certiorari.
Ib., sec. 8, p. 94.
After the Kansas City Court of Appeals had affirmed the judgment
of the Cooper County Circuit Court, the railway company filed a
motion for a rehearing, and prayed therein that, in the event a
rehearing was not granted, the case should be transferred to the
Supreme Court of Missouri. The motion for the transfer of the case
to the Supreme Court was pressed upon two grounds, the second of
which was, in substance, that the decision of the cause involved a
federal question of which the Supreme Court of Missouri should take
exclusive cognizance because of its appellate jurisdiction "in
cases where the validity of a treaty or statute of or authority
exercised under the United States is drawn in question."
The court, in overruling this motion, necessarily decided
that
Page 184 U. S. 537
the case came within its appellate jurisdiction, and not within
the exclusive appellate power conferred by the Constitution on the
Supreme Court of the state. This doubtless rested upon the
predicate upon which the court had based its opinion, which was not
that the issue whether attorneys' fees could be allowed upon the
bond given in the federal court had not been raised, but because,
although that question had been raised and been decided, it was not
one of the class of questions within the purview of the exclusive
jurisdiction of the Supreme Court of the state. And this seems to
us to be the view held by the Supreme Court of Missouri when, in
consequence of the refusal to transfer the cause to it, its
superintending power over the Kansas City Court of Appeals was
invoked through the medium of the application for writs of
prohibition and certiorari. We so conclude because, although, in
its elaborate opinion overruling the application for the writs
named, the Supreme Court declared that the question of the power of
the state court to award attorneys' fees on the injunction bond
given in a court of the United States, contrary to the rule of
damages prevailing in the courts of the United States, had been
raised in the case and had been decided by the Kansas City Court of
Appeals, the writs of prohibition and certiorari would not be
allowed, because such a question was not within the appellate
jurisdiction of the Supreme Court of Missouri, but was within the
jurisdiction of the lower appellate court. After fully stating the
contention below and its decision by the Kansas City Court of
Appeals, the Supreme Court of Missouri said:
"We fail to discover from the record anywhere how 'the validity
of a treaty or statute of, or authority exercised under, the United
States, is drawn in question,' or that a federal question may be
said to have been involved in the case."
In other words, as the exclusive appellate jurisdiction of the
Supreme Court of Missouri over cases which, by the amount involved,
would otherwise have gone to the Kansas City Court of Appeals, was
conferred only in special cases, among other cases involving the
construction of the Constitution of the United States and cases
where "the validity of a treaty or statute of or authority
exercised under the United States is drawn in
Page 184 U. S. 538
question," the court held that as the validity of the bond given
in the circuit court of the United States was not questioned, no
claim made by the defendant of immunity under an authority
exercised under the United States was embraced within the exclusive
appellate jurisdiction conferred by the constitution upon the
Supreme Court of Missouri, and therefore such question had been
properly determined by the Kansas City Court of Appeals. We are
constrained to this construction of the opinion of the learned
court from the fact that it elaborately discusses and demonstrates
that the defense of immunity from liability for attorneys' fees
under the bond given in a court of the United States was not an
attack on the validity of the bond, and therefore not within the
cognizance of the Supreme Court of Missouri, and from the further
fact that, in the course of the opinion, the court said:
"Neither the rules, the practice or procedure, nor the mode and
manner of administering the law in the United States court
applicable to the liability of bondsmen on an injunction bond given
in that court
can in any wise be drawn in question so as to
present a federal question in a suit in a state court on the
bond when its validity, as in the case of
Elliott v. Railway
Co., begun in the Cooper County Circuit Court, and now pending
on appeal in the Kansas City Court of Appeals, is admitted, and
where no question as to the court's authority to order the bond as
given is or was made by the relator."
It results, therefore, under the view we take of the opinion of
the Supreme Court of Missouri, the court decided that, as the case
presented merely a claim of immunity under an authority exercised
under the United States, and did not involve, to quote the language
of the Missouri Constitution, the drawing in question "the validity
of an authority" so exercised, therefore the Kansas City Court of
Appeals was vested under the Constitution and laws of Missouri with
final jurisdiction. But if, however, we were to give to the opinion
of the Supreme Court of Missouri the contrary construction, the
finality of the judgment of the Kansas City Court of Appeals in
this case would be nonetheless apparent. It is manifest, we
conceive,
Page 184 U. S. 539
from the opinion of the Supreme Court of Missouri that if it had
been deemed that a federal question not within the cognizance of
the Kansas City Court of Appeals had been decided by that court,
the superintending power of control conferred by the state
constitution on the Supreme Court of Missouri would have been
exerted for the purpose of preventing the Kansas City Court of
Appeals retaining jurisdiction of the cause. If, then, the action
of the Supreme Court of Missouri can be held not to have been
rested on the phraseology of the Missouri Constitution, including
within the exclusive appellate power of the Supreme Court of
Missouri not claims of immunity arising from an authority exercised
under the United States, but only cases where was drawn in question
the validity of an authority exercised under the United States,
then the necessary effect of the action of the Supreme Court of
Missouri was this -- that, because it held to the opinion that it
was impossible for a federal question ever to arise from a claim of
immunity resulting from the exercise of an authority under the
United States in the giving of an injunction bond in the courts of
the United States, therefore, under the Constitution and laws of
Missouri, the action of the Kansas City Court of Appeals was
final.
It being then demonstrated that, whatever view may be taken of
the opinion of the Supreme Court of Missouri, that court
necessarily decided that the Kansas City Court of Appeals, in
passing upon the claim of immunity, was the final court in Missouri
where such question could be decided, it follows that the writ of
error properly ran to the Kansas City Court of Appeals, and the
claim of the absence of jurisdiction is without foundation.
Having thus disposed of the question of jurisdiction, we come to
the merits of the case. It suffices to say, for the reasons given
in the opinion in
Tullock v. Mulvane, before referred to,
that there was error committed by the Kansas City Court of Appeals
in affirming the action of the trial court in allowing, in the
judgment by it rendered, attorneys' fees as an element of damage
upon the injunction bond contrary to the controlling rule on this
subject enunciated by this Court, by which the
Page 184 U. S. 540
courts of the United States are governed in requiring the
execution of such instruments.
The judgment of the Kansas City Court of Appeals must be
reversed, and the cause remanded to that court, with directions for
further proceedings in conformity with this opinion, and it is so
ordered.
