184 U.S.

530
22 S.Ct. 446
46 L.Ed. 673

MISSOURI, KANSAS, & TEXAS RAILWAY COMPANY,

Plff, in Err.,
v.
JOHN S. ELLIOTT.
No. 148.
Argued and Submitted January 29, 30, 1902.
Decided March 10, 1902.

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 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.' 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 casethat the injunction
was merely incidental to the principal case, and no attorneys' fees were
paid to secure its dissolution.' [77 Mo. App. 659.]
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 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, 55 S. W. 470.
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. George P. B. Jackson for plaintiff in error.
Mr. W. M. Williams submitted the case for defendant in error.
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 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. F. G. Oxley Stave Co.
v. Butler County, 166 U. S. 648, 660, 41 L. ed. 1149, 1153, 17 Sup. Ct. Rep.
709. 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, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct.
Rep. 581. 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, 592,
45 L. ed. 1015, 1017, 21 Sup. Ct. Rep. 730.
4

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, 184 U. S., ante, p. 372, 22 Sup.
Ct. Rep. 372. 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 prevaliling 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 non-Federal 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.
6

The Kansas City court of appeals was created by an amendment to the

Constitution of Missouri adopted in 1884. 1 Mo. Rev. Stat. 1899, p. 92. By 4
of the amendment the said court was given the same jurisdiction over lower
courts within certain territory embraced within which was Cooper countyas
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 of the St. Louis court of appeals was reviewable by the supreme court
of Missouri. Ibid. art. 6, 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. Ibid. 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. Ibid. 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.'

10

The court, in overruling this motion, necessarily decided that 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:

11

'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.'

12

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 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:
13

'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 anywisc 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. Missouri, K. & T. R. 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.'

14

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 none the
less apparent. It is manifest, we conceive, 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.
15

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.

16

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, 184 U. S. 497, ante, p. 372, 22 Sup. Ct. Rep. 372,
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 courts
of the United States are governed in requiring the execution of such
instruments.

17

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.

18

And it is so ordered.