MANNING t7. CLARE.
ning's'bill; and received the draft, and, from that time forward, there was no communication,' 'oral or written, between the parties until August 4, 1882, when the .plaintiff addressed a letter to Mrs. Clark, as follows:
"DEAR MADAM: 1 shall be ready now very soon to take testimony inth!\ matter of the 'schooner Howard. Will you or your son be kind enough to come in and see me in reference to it. Yon recollect that I r!\covered your other claim, and took It contract from you with a power of attorney. I have succeeded, after several years' contest in congress, in securing the passage of a law which provided for the payment of the claim in about two years, but we must begin to prepare the case."
This was followed by other letters from the plaintiff, under the respective dates of January 8 and 10, and December 26, 1883, in each of which he notified Mrs. Clark of his readiness to proceed with the prosecutionof the second claim, and advising her that he should hold her responsible for a breach of their contract in case she employed other counsel. 'She made no response to these requeE'ts of the plaintiff, except, on one occasion, to send her son to Mr. Manning with an offer to allow the case to be carried on in the name of Manning and Corwine, provided they would give security for the delivery of the draft that might be issued thereon, or, to use'the words of the witness, George Clark: "1 wanted an order from them for the draft to be delivered to my mother personally, and 1 was to deposit the amount of their claim, or give them sufficient security as to the payment of their fees, which was declined by Mr. Manning. My reason for so doing was that 1 did not wish to take the chances of their taking what they pleased out of the draft." Acting on her judgment of what would be best for the interests of her deceased husband's estate and her own, Mrs. Clark employed other counsel to collect the second claim, and on February 9, 1885, received the sum of $18,292.42, which was awarded to her as administratrix, for damages for the total loss of the Howard. These are the material facts on which the plaintiff's action rests; and for Mrs. Clark's refusal to permit him to take charge of and conduct the second case, and the substitution of other counsel, the plaintiff claims to be paid 10 per cent. of the amount of the second award, to-wit, $1,829.24, by virtue of the original contract, with interest from February 9, 1885, together with damages by reason of the breach of the said contract. These constitute his own standard for the measure of the damages. The present action was begun against Ellen Clark, administratrix of Thomas Clark, deceased, but on her death, and before the taking of any testimony, George Clark, her son, was substituted as administrator de bonis non of his father's estate. It would seem that Quinton Corwine had never taken a very active part the first claim, although he had done something, and claimed· a share of the commissions; but Manning dlaimed the whole of it, and" by letter of January 24, 1877, requested Mrs. Clark to settle with him, and not with Corwine. On November 4, 1878, Corwine ad-
FEDERAL REPORTER, vol. 40.
dressed a letter to Manning informing him, but withoutstating the rellsons,that he had withdrawn from "any and all claims * * * so far as relates to any contracts, powers of attorney, or agreements, theretofore executed, in which your name was associated as attorney with that ofR. M. Corwine & Son, or with that of Quinton Corwine, individand concluding as follows.: "I decline to have my name associated with yours in any capacity whatever. I hereby forbid you the use of my name, under the penalty of the law, in soliciting or obtaining business of any kind or character whatever." Manning's affidavit, above referred'to, states that in the latter part of July, 1877, he met Mrs. Ellen Clark at Hoboken, and she then "promised and agreed to pay me for - services and expenses in case No. 1,945, on the docket of the court of Alabama claims, in which she was complainant, such sum as I might deem reasonable for saiel services and expenses. Said agreement was a(ter said case had been dismissed from said docket by order of said court." . The death of Mrs. Clark, and the consequent loss of her testimony, subjects the present defendant to .the disadvantage of being unable to furnish a direct contradiction to the plaintiff's statements in reference to the new agreement for fees,-that agreement, it is alleged, having been made with Mrs. Clark by the plaintiff when no otherperson was present,unless the plaintiff's testimony can be ruled out under the proviso of section 858 of the Revised Statutes of United States. That proviso prohibits either party, in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, from testifying against the other as to any transaction with or statement by the testator, intestate, or ward, except in special cases. The plaintiff contends that this' proviso does not apply here, because he never had any dealings with Thomas Clark, the decedent, and the owner of the vessel. ,A literal -construction of the statute would, perhaps, sustain the plaintiff's contention i but it is very apparent that to admit his testimony would give him a decided advantage over the defendant, and would impair, ifnot destroy, that. equal footing between the parties to an action, as witnesses in their own behalf, which it was the manifest purpose of the act to preserve. The spirit of the law would seem to render the plaintiff incompetent to testify as to the conversations between Mrs. Clark and himself. Before the passage of the statutes which enable parties to the record to give testimony in their own favor, the plaintiff would not have been a competent witness, under like circumstances, and it is very questionable whether, under the proviso contained in section 858, he should now be admitted to prove, by his own testimony only, an oral contract with a deceased person who, when making the alleged agreement, was acting as the representative of an intestate whose estate would be seriously affected by a judgment in favor of the plaintiff. In Texas v. Ohiles, 21 Wall. 488, the court held the statute to be remedial in its character, and that it should be construed in a liberal spirit. In Eslava v. Mazange, 1 Woods,' 623, Mr. Justice BRADLEY, in delivering the opinion of the court, said:
"If the law were to allow a man to wait until his antagonist were dead, and then to sue his heirs, and put himself upon the witness stand and give his version of the affair, with no one to contradict or qualify his testimony, it would be as gross a prostitution of tbe forms of law as to allow a man to be judge in bis own cause."
It is true that the plaintiff began this action in the life-time of Mrs. Clark; but it is none the less true that to permit him now, after her death, to testify to conversations with and to statements made by her, with no accessible evidence to refute or explain them, would practically bring about the same result which is 80 emphatically denounced in the opinion just cited. The question is a new and interesting one, and not free from difficulty. It will be unnecessary, however, in the view r have taken of the facts of this case, to pass upon it definitively at this time. A contract between attorney and client is goverued by the same rules which apply to contracts in general, except, owing to the confidential character of the relation between them, an attorney is often held to a stricter accountability in the discharge of his professional duty than is required of a layman. As an officer of the court, he must exercise the utmost good faith towards his client, and, being frequently the trusted depositary and adviser of the ignorant and inexperienced, he must carefully avoid any and every course of conduct calculated to excite the suspicion that he is more bent on securing his own profit than on protecting their interests. On the other hand, it is the duty of the client to confide in and assist his attorney until he has good and sufficient reason for ceasing to do so. It is well settled that an attorney has a lien for his services on money or papers in his possession belonging to his client,a lien which is enforceable in all proper cases; nor is there any doubt that a client has the right to his attorney and employ other counsel, .being responsible always for a breach of his contract. Whether, in dismissing his attorney, the client is liable for damages will depend upon the circumstances of the particular case. In re Paschal, 10 Wall. 496. The question for solution here is whether Mrs. Clark was justified in rescinding her contract of March 27, 1876, in discharging the plaintifl', and in employing another attorney. After a careful consideration of the history of thi8 case, of the conduct of the parties, and their relation to each other,'r am of the opinion that Mrs. Clark acted rightly in refusingto retain the plaintiff as her attorney, after what had occurred on the settlement of his account for collecting the money awarded on the first claim. There is a want of satisfactory proof that Mrs. Clark ever knew that she had made a new agreement by which she consented to pay the plaintiff a large additional compensation. Her conduct, as we have seen, was inconsistent with the possession of any such knowledge on her part, and the plaintiff's testimony must be closely scrutinized before his statements on that subject can be accepted as true. He may have understood Mrs. Clark to assent to his proposition for the allowance of increased commissions, but it is evident that she did not so understand it. Alteration of the terms of a written contract may be proved by parol, but the proof should be clear and free from doubt, especially where one of the con-
tradting,pa:rties is an able and experienced lawyer. and,the change is in 'his favor, and the other party is atl. eldetly woman, who is presumably of business The testifies that his compensation und'erthe new agreement was to be 25 'per cent., while il;1 his affidavit he says that he was to be paid such sum as he might deem reasonable; which is a,wide' difference: ,Mr. ,Manning was a stranger to her, and it 'is hardly probable that would leave herself at his mercy in fixing the value, of his services. For his own protection, as, well as in justice to his client, be should have put the new agreement into writing, and all this controversy might have been avoided. He had repudiated the contract of March, 1876; Corwinehad quarreled with and refused to be longer associated with him; he had compelled Mrs. Clark to pay his aecount, or begin a lawsuit for the recovery of the draft; and it is not surprising, after all thiS', that she refused to longer recognize him as her attorney. The only wonder is that he should have persisted in the attempt to act in that capacity in the face of her opposition and protest. His right to recover damages depends entirely on the existence of the amended agreement, of which there is not adequate and sufficient proof. Judgment will be entered for the defendant.
ST. L. & P.Ry. Co. et ale
(Circuit Court, S. D. ntinoiB. Ootober 111, 1889.)
CONSTITPTIONAL LAW-ILLINOIS WATER-CR.lPT AOT-TITLES OJ'LAWS.
Aot Ill. May 24, 1877, entitled" An act t() facilitate the carriage and transfer of passengers and pro,p,erty by railroad companies, "authorized all railroad companies having a terminus on any river bordering on the state to own for their own use any water-craftnecessary.in carrying across such river any property or passengers transferred on their lines, and provided "that no right shall exist un· del' this act to condemn any real estate for a landing for such water-oraft, or for any other purpose," and that the aot should apply only to "suoh railroad oompanies as own the landing for such water-craft." Heta. that the title was misleading, and not sufficiently broad to inolude 1;he proviso, under the ,constitutional provision (article 4, § 18) that no aot should embrace more than one subjeot, whioh should be expressed in the title.
Under the general incorporation act, of Illinois all railroad oorporations whose navigable streams had power to oondemn lands at lines terminated on their terminus in ol'dert<lreach ferries. HeW, that the proviso in the act of 1877, limiting the right to own and use boats to carry freight and passengers to "suoh railroad companies as own the landinlf 'for such water-oraft, " was within the prohibition of Const. Ill. art. 4, '§ 22, forbIdding the passage of special laws for granting special or exclusive privileges to any corporation, and could not be upheld on the ground that it classified railroad companies whose rOads terminated OIl border. ing rivers into suoh as then owned a landing plaoe and such as did not.
At LaW. Condemnation proceedings. Intervening petition by the St. Louis & Cairo Railroad Company and the Mobile & Ohio Railroad Company for the condemnation of certain lands, for an incline, and transfer-boat landing. E. L. RU88eU, H.· S. Greene, and Lansden & Leek, for petitioners.
TB:OM'&$ ".WABASH, ST. L. & P.RY. 00.
John M. Butler and S. P. Wheeler, for receivers.
ALLEN.J. This case has been before the court, in one form and another, for nearly two years. The intervening petitioners instituted proceedings in the circuit court of Alexander county, Ill. ,to condemn one acre and a fraction ofland, situated between the bank of the Ohio river and the water for the purpose of building, thereon an incline, to be used for the transportation of cars down to the riter, and thus, by means of transfer-boats, form an unbroken connebtion with railroads on the other side, for the benefit of their through freight and passengers. The strip of land sought to be condemned, being in the possession of Thomas & Tracy, receivers, appointed by the court, of the Cairo & Vincennes Railroad, and claimed by them as the property of that corporation, the case was transferred to this court, and afterwards a hearing was had before the district judge and a jury, resulting in a holding by the court 1 that the strip ofland was subject to condemnation for. the purposes set forth in the intervening petition. and the assessment by the jury of damages, to be paid by the St. Louis & Cairo and the Mobile & Ohio RailSubsequently, upon argument road Companies, in the sum of before the circuit and district judges, a rehearing was granted in the case, upon the distinct ground that the act of the Illinois legislature, entitled"A!1 act to facilitate the carriage and transfer of passengers and property by railroad companies,» approved May 24, 1877, presented an insuperable barrier (0 such condemnation. 34 Fed. Rep. 774. Afterwards, upon further argument, the matter was postponed, pending the sugKestionof the court that the receivers sell to the intervening petitioners for a fair price, to be agreed' upon, so much of the ground as might be necessary for the pl1rpose9 of their incline. The St. Louis & Cairo andtheirlessee$, the Mobile & Ohio Railroad Company, having, as they report, wholly failed, after repeated efforts, to purchase from the receivers the land for their incline, asked that the constitutionality of the act of the legislature before referred to, and popularly known as the //Water-Craft Act," be set down for argument. There beinK no serious contention that any other difficulty to the condemnation than this watercraft act existed, and its constitutionality being challenged by attorneys for intervening petitioners, the court set down the question for argument, and it wa·s ably and elaborately argued, by eminent counsel, representing the receivers, as well as the St. Louis & Cairo Railroad Company and its lessees, the Mobile & Ohio, before the district judge. So much of the act in question as is here necessary to be considered is as follows: II An act to facilitate the carriage and transfer of passengers and property by railroad companies. "Section 1. Be it by the people of the state of Illinois. represented in the general assembly. that all railroad companies incorporated uuder tbe laws of this state, haVing a terminus upon any naVigable river bordering on this state, sh;ill have power to own for their own use anI necesl:Not reported.
sary in carryIng across ,sucl) river any cars, property, or passengers trans· ported over t,heir lines. or transported over any railroad terminating on the side of sucl;1 rivel' to be transported over their lines: provided, that no right Shall exist under this act to condemn any real estate for landing for such Water-craft, or for any other purpose. And this act shall only apply to such railroad companies all own the landing for such water-craft." The validity of this act is denied, and the counsel questioning its con· stitutionality contend-First, that it is in conflict with the thirteenth section of the fourth article of the constitution of Illinois, which is in . the following language: "Every bill shall be read at large on three different days 1n each house; and the bill and all amendments thereto shall be printed beforo the vote is taken on its final and every bill having passed both houses shall be signed by the speakers thereof. No act hereafter passed shall embrace more than one subject, and that Shall be expressed in the title. But if any subject shall be emtiraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed; and no law shall be reVived or amended by reference to its title only, but the law revived or the section amended shall be inserted at length in the new act." And, second, that it is in conflict with section 22 of the same article, which provides: "The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say, * ... ... for grantittg to any corporation, association, or individual any special or exclusive privilege, im. munity, or franchise whatever."
Third, that it is in conflict with article 11, § 14, of the state constitution of 1870, which reads as follows: "The exercise of the power and the right of eminent domain shall never be so construedot abddged as to prevent the taking by the general assembly of the property and franchises of incorporated companies already organized, and SUbjecting them to the pUblic necessity, the same as of individuals."
In addition to these objections, it is contended that the act is also reopugnant,to the· spirit amI import of the state and federal constitutions, intended to secure equality of rights to every citizen, natural and corporate. Grave and important constitutional questions are thus brought before the court, and its decision upon them demanded. !tis with extreme unwillingness that a federal court will assume to hold as void the acts of the legislature of a state, especially when such acts have not been passed upon by the state court. And if any wellgrounded doubt exists as to their constitutionality, whenever by any system of fair reasoning any possible construction that is consistent with reason can be given by which the courts can hold them constitutional, ' and give such interpretation to the statutes as to make them valid, they will always do so. But courts, however unpleasant the duty, will always, when properly called upon, considerately review the acts of a c0ordinate branch, and, while hesitating to hold them void for unconstitutionality, yet, when they find them in bold defhmce of the constitution, seeking to override some valuable right or privilege of the citizen
THOMAS". WABASH, ST.L. & P. RY. CO.
or 'of the public, will not shrink from the performance of the high duty imposed upon them by the law. The first objection argued t() the validity of a portion of the watercmft act, namely, that it embraced subjects not expressed in the title, must be tested and disposed of by the decisiOIis and their analogies of the supreme court of Illinois; this thirteenth section of the fourth article of the state constitution having repeatedly beEm before that tribunal' for constitutional provisexposition and interpretation. The object of ion was praiseworthy. Its evident purpose was to prevent fraudulent ana vicious legislation, by requiring the title to gi"le a fair indication of the substance of theact,-such a certain indication as would notify members of the legislature, the public at large, and more particularly all persons having an interest in the matter, of the contents of the act, so as to put them on their guard. Whenever the title of the act has a scope so clear as to indicate its general purpose, then its more specific purposes may be left to the body of the act itself. The title of this act is: "To facilitate the carriage and transfer of passengers and property by railroad companies." This title, it must be confessed, is at once captivating and delusive. The entire public would most likely unite, and the desire become a common one. to facilitate the carriage and transfer of passengers and property by railroad companies, but not the slightest intimation is given as to the means to be employed whereby this transfer is to be facilitated. Indeed, it would seem difficult, by any combination of words, to make a title to any act more general. The body of ,the act authorizes all railroad companies, having a terminus upon any navigable river bordering on tho state of Illinois, to own for their own use any water-craft necessary in carrying across such river any cars, property, or transported over their lines, or transported over any railroad terminating on the opposite side of such river, to be transported over their lines, with a proviso that no right shall exist under the act to condemn any real estate for a landing for such water-craft, or for any other purpose, and that the act itself shall only apply to such railroad companies as own the landing for such water-craft. It is assumed, that this act confers a new power on railroad companies,-that of using and owning water-craft to transfer freight and passengers across the river; and it may be asBurned that it also takes away from certain railrof!.d corporations rights with which they had become vested under the general incorporation law of the state, particularly the power to make such terminal enlfl,rgements, and variations of their terminal privileges, not constituting a new enterprise, as the commerce of the country and the traffic of their roads require. It cannot be well questioned that railroads, whose lines terminated on the bank of one of the navigable rivers bordering on this state, where their business required it, had the power, prior to the water-craft act of 1877, to extend their tracks. or build side tracks. to the edge of the water, and condemn land subject to condemnation for that purpose. Under this act railroad companies cannot condemn land at all, however After such examination and necessary it may be, to reach the reflection as I have been enabled to bestow on the question, I am UQ8v.40F.no.3-9
, , nDERAL REPORTER, vol.
the ()oriclusionthat the'title of this act fairly or suffioiently or information of the scope and substanoe in the body, or indicates: with reasonable certainty the purposes intended to be effeoted; bUt, on the contrary, I am clearly of opinion that tne title is misleading, and not all broad as the act; This view is supported by the followPeiJplev. MellM,32 Ill. 182; Loc:lcport v. Gaylord, 61 IlL 276; Pecplev. Wright,70 Ill. 388; People v. Deaconegses, 71 Ill. 229; Middleportv. Inw,rance Co., 82 Ill. 565; Peoplev. Hazelwood, 116 Ill. 327, 6 N. E. Rep; 480; Leach v. PeoPle, 122 Ill. 421, 12 N. E. Rep. Dolese v. Pierce, 124 Ill. 140,' 16 N.E. Rep. 218; Cooley, Const. Lim. 147-151.' , 'The seoond point argued in ooitnection with the alleged invalidity of the legislative act presents a niost important question: Doesthe watercraft act grant, and was it intended 'to grant, any speoial' or exclusive privilege; immunity, or franohisewhatever to any corporation? If it 40es,it prohibited by the,constitution. The fun-, of the constitution, expressed in a declaradamental idea of the tion, clear and explicit, was doubtless to secure some reasonable degree of equality and unifottDity of right and privilege between the different railroads in the state, whiohare required to perform important services to the' p,ublic. In the first part of the act under consideration no prin:' oiple of.uniformity of right orprivilage is violated. All railroad COmp!1nies incorporltted \mder the laWs of the state, havitlg a, terminus on any of the rivers on its borders, are given power to own for tpeir own use water-craftrieoessary in carrying across such river cars, transported" over theirlines, or transported over property, or any Milroad terminating on the opposite side of such river, to be transported over their lines: It has already been m,entioned that the concession'seems to have been made, on the argument, of the grant ofa new power to 'the class. of Illinois railroads terminating on bordering naviglible waters. Up to the approval of the act in question, these railrol1ds, by the general incorporaticin act, with the view of merelyenlargiJ;lg their termirtal' facilities, had the undoubted right of going to the water,-to transports or ferry-boats. It was because they did not seas the power to' own and use such transports back and forward' between terminal point'S on opposite sides of. these rivers that , the'legislaturewas appealed to;'1tna the newpowet The legisl':tttlre, iU'unswering this appeal, did'a. wise thing, in the first clause of the act,' by ,granting to these railroad corporations the privilege of ferry" goods andpasseJ;igers through, on through cars, putting them on boats'aridtransfer+ing them across the'river, and expediting railroad busiijess"anq acc()mnloditting the pubIlc 'by simplifying the num.of act, however,'seems.tohave gone ri1l1ch nirtherthan the"interests of commerce orofthe pubhcdemanded.,The partieS seeking tMs legislativeaid,-'!\ ferry addition to a f"tandiii;e, satisfied with a general grant of power to all railroada 'paVirig'the same terminus, bUhought toaccoropIlsh the double keeping everybody purpose of gE!tt'ifig this neW power fol' themselves, bM'to