City of Charlotte v. McNeely

190 S.E.2d 179, 281 N.C. 684, 1972 N.C. LEXIS 1161

• Court: Supreme Court of North Carolina
• Decided: July 31, 1972
• Docket: 82
• Status: Published

Opinion

SHARP, Justice.

Appellants’ statement of case on appeal, assignments of error, and brief do not comply with the rules of the Appellate Division, and are rife with extraneous matter which serve only to multiply pages and increase the costs of this appeal. The only question which arises on this record is whether respondents are entitled to have certain of the items allowed by the clerk, and disallowed by the judge, taxed against City as a part of their recoverable costs in this proceeding. Despite respondents’ failure to comply with the rules of appellate procedure, because they are laymen appealing without counsel, and because of the extraordinary nature of the bill of costs taxed by the clerk, we have decided to answer the questions presented.

At the outset it is emphasized that the Court of Appeals affirmed the dismissal of this proceeding upon the sole ground that City had failed to comply with certain procedural statutory requirements, and that the dismissal was without prejudice to its right to reinstitute the proceeding upon compliance with the conditions. Neither party attempted to have this ruling reviewed, and the decision of the Court of Appeals became the law of the case.

It is also noted that, from the beginning, respondents have contended that City’s governing body abused its discretion when it decided to widen Alleghany Street and to take a right-of-way over their property for that purpose. The Court of Appeals properly held that, on the record, the findings of clerk and judge in accordance with these contentions by respondents were immaterial and surplusage. The applicable principles of law are these:

In any condemnation proceeding the question of what is a public purpose is one for the court. The taking of property to construct or enlarge a public street is, as a matter of law, a taking for a public purpose. The public purpose being established, “the question as to the necessity or expediency of devoting the property to the public use is one which must be left to the legislative department.” Jeffress v. Greenville, 154 N.C. 490, 498, 70 S.E. 919, 922 (1911). Thus, the advisability of widening a public street is a matter within the discretion of a city’s governing body. When the applicable statutes have been followed, neither the landowner affected nor the court can interfere with the exercise of this power until the question of compensation is reached. Durham v. Rigsbee, 141 N.C. 128, 58 S.E. 531 (1906). See Morganton v. Hutton & Bourbonnais Company, 251 N.C. 531, 112 S.E. 2d 111 (1959); Highway Commission v. Young, 200 N.C. 603, 158 S.E. 91 (1931). Further, a city council’s choice of a route, or the land to be condemned for a street, “will not be reviewed on the ground that another route may have been more appropriately chosen unless it appears that there has been an abuse of the discretion.” Charlotte v. Heath, 226 N.C. 750, 754, 40 S.E. 2d 600, 603 (1946). Upon specific allegations tending to show bad faith, malice, wantonness, or oppressive and manifest abuse of discretion by the condemnor, the issue raised becomes the subject of judicial inquiry as a question of fact to be determined by the judge. In re Housing Authority, 235 N.C. 463, 70 S.E. 2d 500 (1952); Selma v. Nobles, 183 N.C. 322, 111 S.E. 543 (1922); Power Co. v. Wissler, 160 N.C. 269, 76 S.E. 267 (1912); Jeffress v. Greenville, supra. See Kaperonis v. Highway Commission, 260 N.C. 587, 133 S.E. 2d 464 (1963).

In considering any question involving court costs the following principles are pertinent: At common law neither party recovered costs in a civil action and each party paid his own witnesses. Chadwick v. Insurance Co., 158 N.C. 380, 74 S.E. 115 (1912). Today in this State, “all costs are given in a court of law in virtue of some statute.” Costin v. Baxter, 29 N.C. 111, 112 (1846). The simple hut definitive statement of the rule is: “[C]osts in this State, are entirely creatures of legislation, and without this they do not exist.” Clerk’s Office v. Commissioners, 121 N.C. 29, 30, 27 S.E. 1003 (1897). See 2 McIntosh, N. C. Practice and Procedure § 2538 (1956).

Since costs may be taxed solely on the basis of statutory authority, it follows a fortiori that courts have no power to adjudge costs “against anyone on mere equitable or moral grounds.” 20 C.J.S. Costs §§ 1, 2 (1940). Furthermore, even when allowed by statute, “[c]osts and expenses unnecessarily incurred by the prevailing party will not be taxed against the unsuccessful party.” 20 C.J.S. Costs § 256 (1940). See Chadwick v. Insurance Co., supra.

City properly concedes that respondents, to whom judgment was given, are entitled to recover their actual costs reasonably incurred and specifically authorized by statutes. Clearly, however, such reimbursement is the limit of their entitlement. See G.S. 6-1, G.S. 6-23 (1964); Whaley v. Taxi Co., 252 N.C. 586, 114 S.E. 2d 254 (1960).

In Morris, Solicitor v. Shinn, 262 N.C. 88, 89, 136 S.E. 2d 244, 245 (1964), this Court said: “An award of costs is an exercise of statutory authority; if the statute is misinterpreted, the judgment is erroneous.” Therefore, we consider the legality of the various items which appellants seek to have taxed as costs.

Items 1, 2, 8 and 9

Item 1. Judge Thornburg allowed Item 1, the cost of unidentified “miscellaneous maps, document reproductions and ordinances” in the amount of $80.44. Since City did not appeal, the allowance of this charge is res judicata. We note, however, the expense of procuring surveys, maps, plans, photographs and “documents” are not taxable as costs unless there is clear statu tory authority therefor or they have been ordered by the court. 20 C.J.S. Costs §§ 219, 220 (1940). See G.S. 38-4 (1966) and cases cited in the annotation thereunder.

Item 2. On the hearing be/ore Judge Thornburg City did not contest its liability for this item, the cost of transcripts of the hearings in the amount of $546.10.

Item 8. City’s liability for this item, $6.50 to the clerk for Xerox copies of an invoice, cannot be adjudicated on this appeal since the judge did not rule upon it and no hint of its purpose appears in the record.

Item 9. This charge of $2.50, the “expense of obtaining copy of Court of Appeals opinion,” is res judicata. It was the one item in respondents’ petition which the clerk disallowed.

Items 3, U, 5, 6 and 7

Item 3, Compensation to Respondents for Time Spent in Preparing for and Attending Hearings. The general rule is that, unless authorized by express statute provision, witness fees cannot be allowed and taxed for a party to the action. 20 C.J.S. Costs § 222 (1940); Hopkins v. General Electric Co., 93 F. Supp. 424 (D. Mass. 1950); Shepherd v. Morrison’s Cafeteria Co., 29 Ala. App. 189, 194 So. 427 (1940); Leonard v. Bottomley, 210 Wis. 411, 245 N.W. 849 (1932); Bostrom v. Duffield, 28 S.W. 2d 610 (Tex. Civ. App. 1930). Our statute, G.S. 6-1 (1969), in pertinent part, provides: “To either party for whom judgment is given there shall be allowed as costs his actual disbursements for fees to the officers, witnesses, and other persons entitled to receive the same.”

Since the right to tax costs did not exist at common law and costs are considered penal in their nature, “[sjtatutes relating to costs are strictly construed.” 20 Am. Jur. 2d Costs § 6 (1965). However, in construing G.S. 6-1, it is not necessary to resort to rules of construction. Clearly, the legislature did not contemplate that a party would disburse or become liable to himself for a fee when he testified as a witness for himself in his own case. Neither did it contemplate that a party would pay an officer to subpoena himself as a witness. The losing party is taxed with the costs of his adversary’s witness only if the witness was subpoenaed and examined or tendered. G.S. 6-53. Chadwick v. Insurance Co., supra; 2 McIntosh, N. C. Practice and Procedure § 2538(1) (1956).

The following quotation contained in Hinton v. Scharoun Industries, 41 N.Y.S. 2d 695, 596 (1943) is applicable to this case: “The legislature never intended, I think, in allowing parties to be witnesses for themselves, to put them on a par with other witnesses in respect to witness fees, when they attend the trial to give evidence in their own favor. This would open a door to much abuse, which I should be unwilling to sanction till the legislature so commands.”

A fortiori, if a successful party is not entitled to have a witness fee for himself taxed against his losing adversary he is not entitled to have taxed an expert witness fee for himself. Therefore, Judge Thornburg erred in authorizing the clerk, upon retaxing the costs to allow respondent Sam S. McNeely, Jr., “reasonable payment” for his testimony as an expert witness. Although this1 error was against City, which did not appeal, public policy requires that such a practice not be initiated. Therefore, in the exercise of our supervisory powers, N. C. Const. art. IV, § 12(1) (1970) ; G.S. 7A-32 (1969), this ruling is vacated.

Respondents are entitled to recover neither the statutory compensation for witnesses nor an hourly wage or per diem for the time they expended in “attending hearing, securing evidence, exhibits, et cetera.” In Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E. 2d 21 (1952), a case in which attorney’s fees were held properly allowable as costs to a plaintiff who had recovered public funds in an action the City of Burlington had refused to bring, this Court said: “We are not unmindful that the power to make an allowance of counsel fees from a fund brought into court is susceptible of great abuse, and should be exercised with jealous caution. . . .[but] with the power of award being limited to items of reasonable attorney fees and expenses, so as to exclude compensation or allowance of any kind for the time and effort of the suing taxpayer, thus fixing it so the taxpayer may not capitalize on the suit, we see no real danger of abuse.” (Emphasis added.) Id. at. 101, 72 S.E. 2d at 24-25. The foregoing statement recognizes the well established rule, and the reason for it, that a party is not entitled to compensation for the time and effort he devotes to the litigation. Respondents’ bills, $13,635.00 for Sam McNeely, Jr., and $2,331.00 for Margaret C. McNeely, seem to demonstrate the wisdom of the rule.

Judge Thornburg properly disallowed in its entirety Item 3 (b), and he erred in not disallowing Item 3 (a) in its entirety.

Item U Travel Expenses. As to this item, an allowance to respondents of $206.90 for mileage and $55.77 for meals and hotel bills expended “in securing evidence and attending hearings,” the exposition on Item 3 is equally applicable here. No statute authorizes the inclusion of such expenses in court costs, and Judge Thornburg properly disallowed them.

Item 5, Engineering Costs and Testimony. From the entire record of this proceeding, from respondents “Statement of the Case” incorporated therein, and from their brief, it is quite clear that respondents incurred these costs solely for the purpose of showing (1) that public necessity and convenience did not require City to expand Alleghany Street (a thoroughfare leading to Harding High School) into four lanes; and (2) that, in any event, another plan prepared by Ralph L. Whitehead, professional engineer, was equally as good as City’s and more acceptable to respondents since it would require only a 10-foot right-of-way over their land. Such evidence was irrelevant to the question before the clerk and Judge Bryson. As earlier noted the law left these matters to the judgment of City’s governing body. As the Court of Appeals held, the only question properly before the clerk and Judge Bryson was whether City had followed statutory requirements before instituting the proceeding.

Because City had not complied with the statutory requirements the Court of Appeals held that the proceeding must be dismissed, but it also held that the dismissal was without prejudice to City’s right to condemn the property upon compliance with the applicable statutory provisions. It also specifically noted that the clerk’s other findings, which Judge Bryson adopted, were irrelevant and to be treated as surplusage.

As previously pointed out, under Item 1, unless specifically authorized by statute, or by an order of the court in a proper case, the cost of obtaining maps, surveys, and plats for use on trial are not allowed as taxable costs. Further, expert witness fees can be taxed against an adverse party only when the testimony of the witness examined (or tendered) was (or would have been) material and competent. Chadwick v. Insurance Co., supra; 20 C.J.S. Costs § 244 (1940). Conceding, as the clerk found, that Ralph L. Whitehead is an expert civil engineer, his testimony that his plan for widening Alleghany Street was as good as City’s, was totally irrelevant to the question of City’s right to condemn the property in question. The record discloses no facts which would justify taxing, as a part of the costs for which City is liable, an expert witness fee for Mr. Whitehead. If one is to be taxed, as permitted by Judge Thornburg’s order, it must be taxed against respondents, whose witness he was. As against City, Item 5 must be disallowed in toto.

Item 6, Legal Expenses. In this jurisdiction, in the absence of express statutory authority, attorneys’ fees are not allowable as part of the court costs in civil actions. Bowman v. Chair Co., 271 N.C. 702, 157 S.E. 2d 378 (1967), and cases cited therein. See Trust Co. v. Schneider, 235 N.C. 446, 70 S.E. 2d 578 (1952); 2 McIntosh, N. C. Practice and Procedure § 2538 (2) (1956). With one exception, in eminent domain proceedings the court is authorized to tax counsel fees as a part of the costs only for an attorney appointed by the court “to appeal for and protect the rights of any party in interest who is unknown or whose residence is unknown.” G.S. 40-24 (1966). It is counsel appointed under G.S. 40-24 (1966) to which G.S. 40-19 (1966) refers in providing that a landowner is divested of title when the condemnor pays into court the sum assessed as damages for the taking of his property, “together with costs and counsel fees allowed by the court.” Light Company v. Creasman, 262 N.C. 390, 137 S.E. 2d 497 (1964); Durham v. Davis, 171 N.C. 305, 88 S.E. 433 (1916); R. R. v. Goodwin, 110 N.C. 175, 14 S.E. 687 (1892).

The one exception referred to above is contained in G.S. 1-209.1 (1969), which provides: “In all condemnation proceedings authorized by G.S. 40-2 or by any other statute, all clerks of the superior courts are authorized to fix and tax the petitioner with a reasonable fee for respondent’s attorney in cases in which the petitioner takes or submits to a voluntary nonsuit or otherwise abandons the proceeding.” This section, as Judge Thornburg noted, has no application to the facts of this case. (Although not pertinent to decision here, City’s brief asserts that it has proceeded with a new action, which is now pending.)

The statutes cited by respondents in support of their contention that they should be allowed counsel fees — G.S. 6-21(5), G.S. 21.1, G.S. 21.2 (1969) ; G.S. 136-114, G.S. 136-119 (1964); G.S. 40-19 (1966) — have no application to this proceeding. Judge Thornburg correctly disallowed Item 4.

Item 7, Interest on Costs. Since the greater portion of this item of $5,500.00 is interest calculated on items of disallowed costs, it could not be sustained in any event. However, it is the general rule that interest on costs properly assessed may not be allowed without statutory authority. 20 C.J.S. Costs § 190 (1940). In this State, interest on costs is expressly disallowed by statute. G.S. 24-5 (1965), provides, inter alia, that “the amount of any judgment or decree, except the costs, rendered or adjudged in any kind of action, though not on contract, shall bear interest till paid, and the judgment or decree of the court shall be rendered according to this section.” The judge properly disallowed Item 7.

It is obvious that from the beginning respondents have contested this proceeding upon a misapprehension of City’s legal rights. They were entitled, if so advised, to require City to comply strictly with all statutory procedures. However, after having done so, on the facts disclosed, City would be entitled to reinstitute the proceeding and proceed with the condemnation as originally planned.

It is a matter of regret that in a condemnation proceeding involving a 20-foot right-of-way over land, which commissioners assessed at $4,071.00 in April 1965 (according to City’s brief), respondents have expended in time or money (according to their calculations) $25,538.41. However, they made a judgment decision and must abide the consequences.

Judge Thornburg correctly vacated the clerk’s order allowing respondents to recover from City court costs in the amount of $25,538.41, less $2.50. However, that portion of his judgment remanding the cause to the clerk for the assessment of proper costs in conformity with his order is vacated. The cause will be remanded to the clerk for the assessment of costs in accordance with this opinion. This means that of the items claimed by respondents in their petition for allowance of court costs, the clerk will tax against City only items 1 and 2, miscellaneous maps, document reproductions and ordinances ($80.44) and hearing and transcript recordings ($546.10), a total of $626.54.

Respondents will pay the costs of this appeal.

Modified and affirmed.