Bowler v. Board of Immigration

Opinion of the Court, by Judd, C.J. Dole, J., Dissenting. The appeals in the above entitled causes, bringing up the same question, are by agreement considered together. In the first case the Attorney-General, who appeared ex officio for the Board of Immigration, presented a bill of costs for taxation, which contained the items of attorney’s fees for drawing various pleadings and for attendances, etc., and also for $232.50 attorney’s commissions on the ad damnum. The case had been disposed of by the sustaining by the Court in Banco of defendant’s demurrer. In the second case the Attorney-General appeared for the plaintiff, and the declaration sets forth that the Collector-General brings the action on behalf of the Hawaiian Government. The Court in Banco sustained defendant’s demurrer. The defendant’s counsel filed a bill of costs for taxation, ' claiming attorney’s fees for pleadings, attendance, etc., and $279.31 attorney’s commissions on the ad damnum. *716 The question before us is whether the plaintiff in each case should be charged with defendant’s attorney’s fees and commissions. The authority claimed for the charge of the attorney’s commissions is the 5th Section of the Act of July 29, 1872 (p. 416 Compiled Laws), which reads: “ Section 5. In all the Courts of this Kingdom, in all actions of assumpsit there shall be taxed as attorney’s fees, in addition to the attorney’s fees now taxable by law, to be paid by the losing party and to be included in the sum for which execution may issue, ten per cent, on all sums to one hundred dollars, and two and one-half per cent, in addition on all sums over one hundred dollars, to be computed on the excess over one hundred dollars. The above fee shall be assessed on the amount of the judgment obtained by the plaintiff, and upon the amount sued for, if the defendant obtain judgment.” We think it a sound principle that where the Government eo nomine is sued or brings a suit, or where a department or bureau or officer of the Government has brought suit or is sued concerning matter which in fact is not personal, but involves a claim of the Government as plaintiff, or a liability of the Government as defendant, the plaintiff recovering should not have judgment for attorney’s fees or commissions, nor should the plaintiff on losing be taxed with attorney’s fees and commissions on the amount sued for. In this class of cases the Attorney-General is required by the statute to apppear, and he is forbidden to accept any fee or reward for any business to which it shall be his official duty to attend. By provision-of the same law he is bound to account to the Treasury for all fees, bills of costs, etc., etc., received by him by virtue of his office. The Government, when sued, should not be called upon to pay attorney’s fees and commissions, any more than court costs, which finally go to the Treasury. In The Antelope, 12 Wheat., 546, the Supreme Court of the United States said that it is a general rule that no court can make a direct judgment or *717 decree against the United States for costs and expenses in a suit in which the United States is a party, either on behalf of any suitor or any officer of the Government. This is affirmed in U. S. vs. Ringgold, 8 Peters, 163. And if the Government should not pay these costs it should not exact them from others •for the benefit of the Treasury. This has been the uniform practice in this Court; and we see no reason why it should be departed from. A. S. Hartwell, for Bowler and Luce. C. W. Ashford (Attorney-General), for Board of Immigration and Cleghorn. The recent Act of the Legislature of 1888, “ to provide for the bringing suits by or against the Hawaiian Government,” has not altered the situation. Before this Act the Government could not be sued unless consent was given by the King in Privy Council, and now it cannot be unless process is allowed by a majority of the Justices of the Supreme Court. The power of the Government to sue has never been limited, and it is not enlarged by the recent statute. We sustain the appeal in both cases.