A state cannot burden the right of access to this Court, nor
does the power of the state extend to regulating proceedings in
this Court.
A state court has not, nor can a statute of the state give it,
the power to assess as against one party to a suit in this Court a
sum for attorneys' fees for services rendered in this Court as
against another party to the suit when such assessment is not
authorized by the law of the United States or by the rules of this
Court.
A writ of error from this Court to review the judgment of a
state court and the supersedeas authorized by the Judiciary Act are
federal, and not state, acts.
A state court, when so authorized by the laws of the state, has
the power to award actual damages for business losses which are
suffered by reason of the acts sought to be controlled or enjoined
in the suit after the allowance by this Court of a writ of error
and supersedeas, including reasonable attorneys' fees in the
proceedings in the state court.
Quaere whether the state
court can award punitive damages.
The existence of the right to sue on a supersedeas bond does not
imply an exclusion of the right to sue under an existing general
and applicable law for proper and reasonable damages.
A classification which is based on the distinction between that
which is ordinary and that which is extraordinary is reasonable and
not repugnant to the equal protection provision of the Fourteenth
Amendment which only restrains acts regulating judicial procedure
so transcending the limits of classification as to cause them to
conflict with the fundamental conceptions of just and equal
legislation.
A state statute imposing reasonable attorneys' fees in actual
mandamus proceedings against the party refusing to obey a
peremptory writ is not repugnant to the equal protection clause of
the Fourteenth Amendment either because it does not apply to other
proceedings or because it is not reciprocal. The classification is
not unreasonable, and so
held as to the statute to that
effect of Kansas involved in this case and as herein applied.
85 Kan. 214 reversed.
A dispute as to a small charge for demurrage having arisen
between the Missouri Pacific Railway Company and
Page 234 U. S. 460
the Larabee Flour Mills Company, the railway company, to enforce
payment, suspended the rendering of a certain class of switching
service which it had previously regularly performed for the mills
company. The latter, on September 15, 1906, commenced in the
Supreme Court of Kansas mandamus proceedings to compel the
continuance of the service. After a response to an alternative rule
and a hearing on the eighth of December, 1906, the court granted a
peremptory mandamus. 74 Kan. 808. At the close of the opinion,
there was the following memorandum (p. 822):
"The court has authority to render judgment in favor of the
plaintiff for any damage it has sustained. Gen.Stat. 1901, §
5193. The plaintiff is given ten days in which to file a claim for
damages, stating separately the character and amount of each item.
The defendant is given ten days after notice of the filing of the
claim in which to except to any items which it may deem not
recoverable. The court will then pass upon the exceptions if any be
taken, and make orders respecting a hearing."
Some days thereafter, a claim of damages was filed enumerating
fifteen items. The first eight concerned various business losses
alleged to have been occasioned by the suspension of the service,
such as decrease in the output of the mill, increased cost of
hauling, etc., etc. Four of the claims on these subjects aggregated
$4,907.39, and four stated no amount, but reserved the right to
make a future claim for losses in case the litigation should be
prolonged and the resumption of the service postponed. The
remaining six items, with one exception, related to small expenses
alleged to have been incurred in the mandamus suit. One of them,
however, the fourteenth, made a charge of $2,500 "to cash paid and
plaintiff's agreement to pay Waters & Waters attorneys' fees in
this case." The fifteenth item reserved the right to make a charge
for future
Page 234 U. S. 461
legal services "if this case is taken to the Supreme Court of
the United States whatever such services may be worth." A few days
after this claim was filed, on December 24, 1906, a writ of error
was issued from this Court to the judgment in mandamus, and a bond
to operate as a supersedeas was approved. About two years
thereafter, on January 11, 1909, the case was decided in this Court
and the judgment below was affirmed.
211 U. S. 211 U.S.
612.
After the mandate went down, leave was given to file an amended
claim for damages, and on the same day a Commissioner was appointed
to hear the testimony concerning it and report. The amended claim
was filed. It was divided into three general classes: first,
damages asserted to have arisen from loss of business, etc.;
second, damages claimed as the result of the expenses and outlay
for the suit; third, cost incurred or anticipated, occasioned by
the hearing of the claim. The first, that is, the business losses,
was embraced in separate items substantially following the order of
the original claim; that is, it was based on alleged loss of
output, increased cost of operation, etc., etc. The amounts of many
of these items were larger, as they covered the time from the
discontinuance of the service up to the filing of the amended
claim. The aggregate of the claim was $18,921.90, as compared with
$4,907.39, made at the time of the first claim. The second, the
expenses of the suit, was greatly changed. Leaving out two
insignificant items, as amended the claim was in substance
follows.
The claim for $2,500 paid or to be paid to Waters & Waters
for personal services was changed to read
"For the reasonable value of the services of Waters & Waters
to bring this action and to attend to the same in the supreme court
of the State of Kansas, the sum of $2,500.00. "
Page 234 U. S. 462
"Tenth. For the reasonable value of the services of Waters &
Waters in this case in the Supreme Court of the United states, the
sum of $40,000.00."
"Eleventh. For cash paid out for printed briefs in the state and
United States Supreme Court, the sum of $93.50."
"Twelfth. For the reasonable value of the professional services
of John F. Switzer, attorney at law, employed to assist Waters
& Waters in the Supreme Court of the United states, the
plaintiff, in the best judgment of the partners composing said
firm, deeming it necessary, after considering the momentous and
far-reaching controversy made, urged, and argued in the Supreme
Court of the United States, and which controversy it could not
avoid, the sum of $3,000.00."
"Thirteenth. For the reasonable value of the professional
services of the firm of Rossington & Smith, attorneys at law,
also employed to present the case of the plaintiff in the Supreme
Court of the United states, the plaintiff, in the best judgment of
the partners composing said firm, deeming it necessary, after
considering the momentous and far-reaching controversy made, urged,
and contended for in the Supreme Court of the United States, and
which controversy it could not avoid, the sum of $30,000.00."
"Fourteenth. For the railroad fare, hotel bills, and reasonable
expenses of W. H. Rossington and J. G. Waters in attending on the
United States Supreme Court in April, 1908, the sum of $250 each,
and making a total of $500.00. "
Page 234 U. S. 463
"Fifteenth. For the railroad fare, hotel bills, and reasonable
expenses of Charles Blood Smith and J. G. Waters in attending on
the Supreme Court in October, 1908, the sum of $480.60."
"Sixteenth. For the costs due the plaintiff in the Supreme Court
of the United states, the sum of $148.25."
The 17th, 18th, and 19th items embraced small items of traveling
and other expenses of the parties and some of their attorneys. In
the items of court expenses the difference between the original
claim was substantially this, that the claim had grown from about
$2,800 for attorneys' fees in the state court when the original
claim in damages was filed to a sum in excess of $75,000, all of
which increase resulted from charges made for professional services
rendered in this Court in connection with the trial of the case.
The remaining items of the third class related to expenses incurred
under the reference to the Commissioner before whom the case was
pending, with a reservation of the right to make future charges for
such purpose when the reference was completed.
The railway company objected to the various items in the amended
claim as follows: to those covering the business losses, decrease
of output, increased expenses, etc., etc., besides denying that the
suit was the proximate cause of the losses represented by the
alleged claims, and asserting their speculative nature, it was
specially charged that, insofar as they included items arising
after the allowance of the writ of error from this Court and the
giving of the supersedeas bond, they were not within the cognizance
of the court, but were matters alone of federal competency within
the jurisdiction of this Court. So far as the claims for alleged
outlay and expenses including attorneys' fees in the state court
were concerned, it was alleged that there was no right to recover
them because
Page 234 U. S. 464
the only authority under which they could be allowed was a
statute of the State of Kansas relating to mandamus proceedings,
and that such statute, as construed by the court of last resort of
the state, was repugnant to the due process and equal protection
clauses of the Fourteenth Amendment because, under such
construction, a right was given by the statute to a plaintiff in
mandamus to recover attorneys' fees as damages, while no reciprocal
right in case of success was given to a defendant, and no such
right was given to litigants generally. Coming to the alleged right
to recover attorneys' fees for services rendered on the writ of
error in this Court and the other items, such as briefs, traveling
expenses, hotel bills, etc., etc., it was expressly charged that,
under the statutes of the United States, the effect of the writ of
error from this Court and the supersedeas was to deprive the state
court of all authority over such expenses, and that, moreover,
"under such statutes and laws of the United States, this Court
has no power, authority, or jurisdiction to consider the claim and
demand for damages on account of attorneys' fees for services
rendered in such proceeding in error from the Supreme Court of the
United States to the Supreme Court of Kansas, and for the further
reason that, if the said plaintiffs were entitled to any damages,
their application therefor should be made to the Supreme Court of
the United States, or in an independent proceeding brought on the
supersedeas bond so approved and allowed as a supersedeas by the
chief justice of this state . . . and because, further, to allow
such claim would be violative of the Constitution of the United
States, and especially the Fourteenth Amendment thereof, which
prohibits any state from denying to any person, company, or
corporation the equal protection of the laws, and prevents any
state from depriving any person, company, or corporation of its
property without due process of law; . . . and because of such
Judiciary Act [of the United States], . . . this court
Page 234 U. S. 465
is deprived of all jurisdiction to consider or determine any
such question or element of damage in a proceeding of this kind,
and because, further, the Supreme Court of the United States, in
affirming the judgment of this court . . . allowed to said
plaintiffs, on account of attorneys' fees, the sum of $20.00, and
assessed the same against the said defendant. . . ."
After proof and hearing the Commissioner made an elaborate
report stating fully what he conceived to be the facts and the law
of the case. On the subject of the various claims made for the
allowance of damages for a charge of fees for professional services
rendered in the Supreme Court of the United States, the
Commissioner made the following statement:
"I find that no agreement has ever been had between the mill
company and any of the attorneys as to the amount of their
compensation; that neither of the attorneys has at any time entered
on his books a charge against the mill company for services
rendered. nor have they informed the mill company of the amount
intended to be charged, nor have they determined in their own minds
any definite amount intended to be charged."
"I find that the attorneys will claim the full amount, and will
accept whatever amount that shall be determined by this court in
this proceeding to be a reasonable compensation for their services
in the case and allowed as part of the damages."
"I further find that it is mutually understood between the mill
company and the attorneys named, that whatever amount is recovered
in this proceeding on account of fees and expenses of counsel will
be paid by the mill company to and accepted by the attorneys as a
full discharge of the liability to them."
The conclusions of the Commissioner as to the amounts to be
allowed as damages under the three classes of claims were as
follows:
Page 234 U. S. 466
As to the first class, he reduced the claim for
business losses, increased expenses, etc., etc.,
from $18,921.90 to . . . . . . . . . . . . . . . . . . . .
$5,658.10
As to the amount claimed as due because of
the professional services of Waters & Waters in
the state court, the sum claimed was allowed in full. . .
2,500.00
As to the items for professional services
rendered in the Supreme Court of the United States,
including hotel bill, etc., the amount was reduced
from about $75,000 to. . . . . . . . . . . . . . . . . . .
11,480.00
Under the third class, three small items were
allowed relating to the expenses of the parties in Kansas,
and concerning the reference to the Commissioner . . . . .
376.00
-----------
Total . . . . . . . . . . . . . . . . $20,014.10
Both parties excepted to the report of the Commissioner on
various grounds, and after a hearing the supreme court sustained
his action and affirmed his report. 85 Kan. 214.
MR. CHIEF JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
Both before the Commissioner and to the court where the report
of the Commissioner was acted on, the propositions under the
Constitution and laws of the United States upon which the railway
company relied were pressed and overruled, and the rightfulness of
having so done is the
Page 234 U. S. 467
question here for decision. But first we notice a motion to
dismiss for want of jurisdiction. It is difficult to grasp the
ground upon which it rests. In one aspect, it would seem to assert
that there is no jurisdiction because the federal rights which were
passed upon below were correctly decided. But this obviously goes
to the merits. In the only other possible aspect, it would seem
that the motion proceeds upon the theory that the federal rights
which were decided below were so obviously rightly decided that the
contention of error concerning them is too frivolous to sustain
jurisdiction -- a view which is supported by a statement in the
argument for the motion that, of course, there would be
jurisdiction if it appeared that the judgment below "under the
color and sanctity of the law inflicted exceptional and unjust
exactions." But, taking the most favorable view for the motion and
assuming that it proceeds upon the only ground upon which it can
possibly be said to rest -- that is, the frivolousness of the
errors relied upon, we pass from its consideration, since upon such
hypothesis we think, on the face of the record, the contention is
so clearly unsound as to require no further notice.
The federal errors relied upon concern three subjects: the
allowance of business losses, etc., the award of a sum for
attorneys' fees in the state court up to and including the writ of
error from this Court and the supersedeas, and the grant of an
amount for attorneys' fees agreed or supposedly agreed to be paid
for professional services rendered in this Court on the writ of
error, and traveling expenses and hotel bills allowed for the same
purpose. The three involve different considerations, and hence we
consider them separately. We come first to test the question as to
attorneys' fees in this Court, as it is the most important and
far-reaching, since it involves considerations of the gravest
importance going to the entire structure of our system of
government, based as it is upon an absolute
Page 234 U. S. 468
denial of any power whatever in the court below to deal with the
subject, while the other two contentions at best, challenge power
but relatively or partially.
First. The question of the power of the court to make the
allowance for professional services rendered in this Court on the
former writ of error.
There can be no doubt that, tested by the general principles of
law controlling in this Court, by the statutes of the United States
relating to the subject, or the rules of this Court concerning the
same, the award for the attorneys' fees in question was absolutely
unwarranted. We do not stop to review and expound the settled line
of authority demonstrating this result, because it would be wholly
superfluous to do so, as the principles have been so long the
settled rule of conduct in this Court, and are so elementary, as to
require not even a reference to the cases. Some of the cases,
nevertheless, we cite:
Arcambel v.
Wiseman, 3 Dall. 306;
Day v.
Woodworth, 13 How. 363,
54 U. S. 372;
Oelrichs v.
Spain, 15 Wall. 211,
82 U. S.
230-231;
Tullock v. Mulvane, 184 U.
S. 497,
184 U. S. 511
et seq. Indeed, this view is not disputed in the argument
at bar, and was not questioned in the court below, since the court
placed its action in making the allowances in question not upon the
supposed authority of any act of Congress, nor of any practice of
this Court or rule thereof sustaining the same, nor upon any
principle of general law, but solely upon the theory that a state
statute gave the power to make the allowances. Nothing could make
this view clearer than does the following statement, taken from the
opinion of the court below:
"The damages in mandamus proceedings comprehended by § 723
of the Code [Gen.Stat. 1909, § 6319] are the injuries
sustained as the natural and probable consequences of the wrongful
refusal to comply and the expense reasonably and necessarily
incurred in compelling compliance with the alternative writ,
including reasonable attorneys' fees in this court and in the
Supreme
Page 234 U. S. 469
Court of the United States."
And in addition, the view of the court below is aptly
illustrated by the following passage from the report of the
Commissioner answering the claim of the railway company as to the
effect of the writ of error from this Court and the giving of the
supersedeas and the resulting authority of this Court over the
cause under the statutes of the United States -- a passage which
the court below expressly adopted and made a part of its
opinion:
"Upon this objection I conclude:"
"1. That the jurisdiction of this court in mandamus is the
creation of the Constitution and the statutes of the State of
Kansas."
"2. That this court is the sole judge of what that Constitution
and those statutes provide."
"3. That the jurisdiction of this court in mandamus over persons
within its jurisdiction cannot be affected by act of Congress."
"4. That the Judiciary Act does not and was not intended to
affect the jurisdiction of this court."
"5. That the jurisdiction of this court in mandamus attaches
upon the issuance of the alternative writ, and the subject matter
of the proceeding being the awarding a peremptory mandamus, that
jurisdiction continues unabated not only until the writ is awarded,
but also until the writ is issued and obedience to it
enforced."
"6. That the alternative writ is a command of the performance of
specified and prescribed duties, and return to the writ is a
refusal to perform the duties prescribed; the judgment awarding a
peremptory mandamus is a conclusive adjudication that such refusal
was wrongful, and the act of the court compelling compliance with
the command of the alternative writ."
"7. That the damages comprehended by the Kansas statute are the
injuries sustained as the natural and probable consequences of the
wrongful refusal to comply,
Page 234 U. S. 470
and the expenses reasonably and necessarily incurred in
compelling compliance with the command of the alternative
writ."
"8. That the allowance of the writ of error did not operate to
remove the suit from the supreme court of the state into the
Supreme Court of the United States; its only effect was to bring up
the record for purposes of review."
"9. The allowance of the writ of error did not operate as a
supersedeas; the taking the supersedeas bond brought about the
supersedeas. The taking the bond, and the supersedeas itself,
insofar as it can be conceived of as a substantial act, was the
action of the Supreme Court of Kansas."
We observe in passing, that the views concerning the Judiciary
Act and the effect of the writ of error from this Court and the
relevant statutes of the United States which were expounded in this
passage are not required to be reviewed, because they are not
necessarily involved in the decision below, since that decision did
not rest upon them, but was based upon the operative effect of the
state statute, and hence the views expressed as to the United
States statutes in the passage quoted must have been adopted simply
because they were considered to be illustrative of the principle by
which the state statute was made to control. We therefore without
in the slightest degree admitting their correctness even for
argument's sake, pass the conclusions as to the statutes of the
United States, expressed in the passages of the report, and shall
not recur to them except insofar as, under the principle of
noscitur a sociis, we may find it convenient to do so as
illustrating the fundamental and destructive error embodied in the
conclusion of the court as to the operative power of the state
statute.
The question is, then, was the court below right in holding that
it had the power, because the Kansas statute so authorized, to
assess as against one party to a suit in the
Page 234 U. S. 471
Supreme Court of the United States a sum for attorneys' fees for
services rendered in that court as against another party to the
suit, although such assessment, as we have seen, was not authorized
by the law of the United States, but was in conflict with the
settled rule in the Supreme Court of the United States? It seems
superfluous to put the question, since its very statement conveys
of necessity a negative answer. For how, on the face of the
question, consistently with the most elementary principles of our
constitutional system of government, can it be possibly assumed
that a state statute could be made operative in the Supreme Court
of the United States to the disregard of its settled rule of
procedure and of the principles which had guided its conduct from
the beginning, directly sustained by express rule adopted under the
sanction of Congress?
We might well go no further, but, in view of the importance of
the subject, we briefly advert to one or more of the obvious
consequences which would arise from maintaining the principle. It
would follow, of course, that the right to freely seek access to
the Supreme Court of the United States would cease to exist, since
it would be in the power of the states to burden that right to such
a degree as to render its exercise impossible. How better could
this be illustrated than by the case before us -- that is, by the
necessary implication that there would have been power in the court
below if it had deemed it just to do so, to award the claim which
was made for $75,000 attorneys' fees for services rendered in this
Court! Indeed, in the argument at bar, it was freely conceded that
it may well have been that the mainspring which caused the adoption
of the statute relied upon was the deterrent influence which it
would produce in the prosecution of writs of error to this Court.
Thus, the argument proceeds:
"The railway company refuses to obey; judgment is had against
it; it still refuses, it seeks delay; it initiates
Page 234 U. S. 472
a writ of error in this Court. By this method, it makes the suit
expensive. . . . It was just this situation that the Legislature of
Kansas intended to correct. . . ."
And the far-reaching operation of the principle by which the
state statute could alone have been made to produce the result
attributed to it by the court below is illustrated by the legal
conclusions of the operation and effect of the statutes of the
United States stated in the report of the Commissioner, which was
adopted by the court as expressed in the passage which we have
previously quoted. This is the case, since the views thus
sanctioned are necessarily illustrative of the mental atmosphere by
which alone it could have been possible to conceive that the state
power extended to regulate the proceedings in the Supreme Court of
the United States to the disregard of the express provisions of the
act of Congress. A view which is not an overstatement when it is
observed that, among other things, the conclusion which was below
sustained was that the writ of error from this Court and the
supersedeas authorized by the act of Congress were not federal, but
purely state, acts. And moreover, it was concluded that the
exertion by the Supreme Court of the United States under the
Constitution and laws of the United States of the power to bring up
a case from the state court in order to review it and to grant a
supersedeas in order to make that right effective, operated to
leave the state court in possession of the case and only to move
the record, hence creating a residuum of state power which, as to
such case, gave authority to the state court to regulate, certainly
as to attorneys' fees, the proceedings in the Supreme Court of the
United States.
We shall reason no further, and shall content ourselves with
pointing out that, in substance and effect, the absolute want of
foundation for the contention here made has been in express terms
foreclosed. For instance, at this term, in
Harrison
v. St. Louis & San Francisco R. Co.,
Page 234 U. S. 473
232 U. S. 318, a
statute of the State of Oklahoma which burdened or impeded the
right of free access to the courts of the United States was held to
be repugnant to the Constitution, and the destructive effect of
such legislation upon our institutions was pointed out. And light
on the subject is afforded by a consideration of the ruling in
Tullock v. Mulvane, 184 U. S. 497.
See also Home Ins. Co. v.
Morse, 20 Wall. 445,
87 U. S. 453;
Clark v. Bever, 139 U. S. 96,
139 U. S.
102-103.
Second. The power of the court below to award damages for
the business losses which were suffered after the allowance of the
writ of error and the supersedeas.
The contention is that the power did not exist, since the effect
of the writ of error and the supersedeas was to remove the case to
this Court, and therefore deprive the court below of the right to
consider any act causing damage done after the prosecution of the
writ of error and the supersedeas. But, conceding in the fullest
degree the asserted effect of the supersedeas, that effect ceased
with the affirmance of the judgment by this Court, and therefore
necessarily opened the way for the court below to consider and
determine how far the alleged illegal conduct of the railway
company had entailed damages and consequent responsibility.
Conceding further that the bond for supersedeas embraced such acts
and the resulting damages therefrom, and therefore there was a
right to sue on the bond, again the deduction is a
non
sequitur, because the right to resort to the bond did not
imply an exclusion of the right to sue under the general law to
recover damages if the election was made to follow that course. Of
course, as there is nothing in this case even suggesting that the
award of damages for acts done pending the writ of error in this
Court was so excessive as to justify the extreme inference that
punishment for invoking the right to resort to this Court was
inflicted, we need not consider the rule which would be applicable
in such a contingency.
Page 234 U. S. 474
Third. The power of the court below to award damages for
attorneys' fees for services rendered in the state court.
The attorneys' fees were allowed by the court below in virtue of
a statute which gave such power in case of mandamus proceedings.
The construction of this statute which was adopted was not original
in this case, but was an application of an interpretation of the
statute previously affixed to it, and, indeed, which was made prior
to the commencement of the mandamus proceedings in question.
Carney v. Neeley, 60 Kan. 672;
McClure v. Scates,
64 Kan. 284. The contention is that as the statute exceptionally
allows attorneys' fees in mandamus proceedings against one refusing
to obey the peremptory writ of mandamus, and does not allow them in
other cases, it contravenes the equal protection of the laws clause
of the Fourteenth Amendment, and is void. But it is not open to
controversy that the Fourteenth Amendment was not intended to
deprive the states of their power to establish and regulate
judicial proceedings, and that its provisions therefore only
restrain acts which so transcend the limits of classification as to
cause them to conflict with the fundamental conceptions of just and
equal legislation. The proposition here relied upon therefore comes
to this: that there is not such a distinction between the
extraordinary proceeding by mandamus and the ordinary judicial
proceedings as affords a ground for legislating differently
concerning the two. But when thus reduced to its ultimate basis,
the proposition answers itself, since it cannot be formulated
without demonstrating its own unsoundness. If more were needed to
be said, it would suffice to direct attention to the distinction
which must obtain between that which is ordinary and usual and that
which is extraordinary and unusual. Or, to state it otherwise, to
call attention to the difference between the duty to perform a
ministerial act concerning which there is room neither for the
exercise of judgment nor discretion
Page 234 U. S. 475
and the right, on the other hand, to bring into play judgment
and discretion as prerequisites to the performance of an act of a
different character, and the distinction which justifies the
classification made by the statute also answers the argument that
the equal protection clause of the Fourteenth Amendment is violated
because the allowance of attorneys' fees was not reciprocal.
Missouri, K. & T. R. v. Cade, 233 U.
S. 642. The ruling in the case last cited also serves to
demonstrate the want of merit in the contention that the question
here presented is governed by
Gulf, C. & S.F. Ry. v.
Ellis, 165 U. S. 150.
Again we deem it necessary to observe that the opinion here
expressed is confined to the case before us. We do not, therefore,
imply that the reasoning here applied would be controlling in a
case where, although the name "mandamus" was preserved, in
substance and effect the distinction between that writ in an
accurate sense and ordinary procedure would have disappeared.
It follows from what we have said that error was committed in
the court below in allowing the items of damages for attorneys'
fees, traveling expenses, etc., in the Supreme Court of the United
States, and that, from a federal point of view, there was no error
in the judgment below to the extent that it awarded the damages
complained and allowed a claim for attorneys' fees for services
rendered in the state court. And, to give effect to these
conclusions, the judgment must be reversed and the case remanded
for further proceedings not inconsistent with this opinion.
And it is so ordered.
