Superintendents of the Poor of the Ontario v. Moore

12 Wend. 273

Opinion

By the Court,

SUTHERLAND, J.

The question is, can the sessions, in a case like this, allow more than taxable costs ? There is a marked distinction between phraseology of the revised statutes on this subject, and the law as it heretofore existed. Formerly it was the duty of the general sessions to award to the party in whose favor an appeal of this kind was determined, “ such costs and charges as the said justices in their discretion shall deem reasonable,” to be paid by the losing party. 1 R. L. 310, § 11. Now the language of the statute is, “The court shall award costs to the party in whose favor any such appeal shall be determined. 1 R. S. 649, § 37. This shows an intent to change the law. All discretion is taken away, and nothing can be taxed but what is strictly and. technically costs. Consequently the allowance of $20 for a counsel fee was unauthorized. I think, however, there is no force in the objection to the allowance of witnesses’fees. The provision in the statute to which reference has been made, 1 R. S. 647, § 27, does not necessarily deprive witnesses of their right to fees; such was not its object. The intent of the legislature was to provide for the compulsory attendance of witnesses, an appeal not being properly a cause pending in court; and without some legislative enactment, there would have been no authority to issue process for the attendance of witnesses. Besides, it is undeniable that the legislature intended to give costs to the prevailing party; and if witnesses’ fees as well as counsel fees are stricken out, the provision as to costs would be useless. My opinion therefore is, that the charge of $20 for counsel fees ought to be stricken out, and that ,the residue of the charges are proper.

Footnotes

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A similar question was some time since submitted to this court by the judges of the county courts of Otsego, in which Mr. Justice Nelson delivered an opinion substantially the same as the above. He observed: “ The lan. guage of the revised statutes is certainly more guarded and restricted on this subject than that found in the former statute, and I am of opinion that the legislature intended to take away the discretion before entrusted to courts of sessions, in tlfe allowance of costs to the prevailing party. These statutes contemplate a regular taxation of the costs; for they provide, that in certain cases the amount shall be paid on the production of a certified copy of the order awarding costs, and of the taxed hill of such costs. 1 R.S, 649, § 37. Costs can be taxed only according to the fee bill established by law, which leaves nothing to the discretion of the court or the taxing officer. This is the obvious intent of the legisl ture, to be derived as well from the language of the section above referred to, as from the marked difference between it and the old law. But if that intent was doubtful, I have no hesitation in adopting the above construction. There is no reason for discrimination in the allowance of costs between a case of this kind and ordinary suits prosecuted in court. There is nothing more troublesome to courts or more liable to abuse, than a discretionary power in the allowance of costs, charges and expenses. It is not unfrequent that the suit or 'litigation is conducted with express reference to such costs, charges and expenses ; and it is difficult to detect the pretences plausibly urged to justify the expenses incurred. Besides, did such discretionary power exist, no fixed or general rule of allowance could be established ; each case would depend upon its peculiar circumstances, and instead of a uniform rule prevailing throughout the state, not only would different principles govern in the decision of questions of this kind in the different counties of the state, but the same rule would not be observed in all cases in the same county.” Vide etiam Potter v. Richards, 10 Wendell, 607, in which the Chief Justice gives a construe, tion to the words costs and expenses, allowed to a defendant discharged from arrest under the non-imprisonment act.