Gilfillan v. Schaller

144 N.W. 918, 33 S.D. 172, 1914 S.D. LEXIS 2

• Court: South Dakota Supreme Court
• Decided: January 12, 1914
• Status: Published

Opinion

SMITH, P. J.

This -case- is -before ¡us on appeal from the taxation of costs for printing briefs. The taxation was -at the 'rate of $1 per page, the brief containing less than 50 pages.

Rule io of 'this court (140 N. W.-xiii), -adopted- April 1, 1913, among other ¡things provides: “Disbursements for ¡printing under this -rule shall not -exceed' what -has been actually and- necessarily expended or incurred by the party seeking to have- the disbursements allowed, nor, in any case, exceed $1.00 per page for the first 50 pages,” et-c. At the hearing appellant ¡presented an affidavit tending to -show that respondent’s, brief and abstract were printed and paid for at the rate of 75 cents per page, and- -that the actual expenditure for printing -was $34.50, whereas the cost taxed amounted to $46. It is appellant’s contention that -the taxation at -the rate of $1 per page is contrary to the -provisions of rule 10 above referred' to.

Chapter 168, Daws of 1913, 'approved March 13, 1913, provides as follows: Sub. 5. Disbursements for printing of brief or abstract of record, when printed to conform to- the rules of the Supreme Court, shall-be $1.00 per page for 50 p-ages or less, and 75 -cents per page -for each additional .page.” It will be observed that-rule 10 was adopted April 1, 1913. -Chapter- 168, supra, contained no -emergency -clause and -did not become operative until July 1, 1913. Chapiter 5, laws of 1911, requires the Secretary of State, within- three days after the filing -oif an act with the emergenc3 clause, to furnish the Presiding Judge of this -court with a -copy thereof. 'Chapter 168, Laws of 1913, not being within the purview-of this- act, no copy was. furnished' the Presiding Judge. The act ¡was -passed and approved 18 days prior to the adoption of rule 10, but wa-s not brought -to ¡the attention of the court at .the time the rules were adopted. This act of the legislative assembly, specifically declaring the rate -at which costs for printing shall be -taxed, renders* the rule adopted' by the -court entirely void. The Legislature having declared that -disbursements, for printing shall be $1 per -page, this- court is without power to declare by its rules that disbursements therefor shall not be taxed in excess -of the amount which has been actually expended or incurred, however just and- meritorious such a rule may be.

It. follows- that costs for printing must be, allowed -and taxed at the rate -of $1 p-er page, and the taxation as made 'by the clerk under the statute is therefore affirmed.