Bartle v. . Gilman

The only question in this case is, whether the provisions of the Revised Statutes for the allowance of double costs, in cases like the present, are repealed by the Code. The provisions of those statutes, concerning costs, are contained in chap. 10, part 3, vol. 2, p. 612. That chapter is entitled "Of costs, and the fees of officers," and has three titles. The first title relates to "the cases in which costs may be recovered, and in which double costs may be allowed;" and it gives double costs, among other cases, in *Page 261 actions against public officers for or concerning any act done by such officer, by virtue of his office, when judgment is rendered for the defendant. The second title relates to "security for the payment of costs;" and the third is entitled "Of the fees of certain officers," and prescribes the fees to be allowed for services "done or performed in the several courts of law and equity in this state by the officers thereof," and, among other officers, by attorneys, solicitors and counselors. By the Code (§ 303), "all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, c., are repealed, c.; but there may be allowed to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action, which allowances are in this act termed costs." It is then provided in what cases costs shall be allowed to the plaintiff, when to the defendant, and when to either party in the discretion of the court; and that the court may make an additional allowance in certain cases, not exceeding a certain rate. The costs are to be adjusted by the clerk on notice. It is only the provisions of the Revised Statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel that are expressly repealed by the Code, and those provisions are mostly at least, if not all of them, in the third title of chapter 10, above referred to. The Code does not profess to abrogate the other provisions of that chapter, and therefore does not do so, except so far as it may be inconsistent with them. Unless inconsistent, or in substance inapplicable, they are expressly retained. The sections as to security for suits are untouched by it, and so are all other sections which may operate in harmony with it. In regard to the section allowing double costs, it is in the first title of the chapter, and the language used is, that "such defendant," in the cases specified, shall "recover the amount of his taxed costs, and one-half thereof in addition," being what is called double costs, and by the next succeeding section *Page 262 the double costs awarded shall be deemed to belong to such defendant. The attorney, solicitor or counsel has no right to them; and it seems to be entirely clear, therefore, that the section allowing them is not a statute establishing or regulating the fees of those officers. The Code does not in direct terms repeal that section; and if there is any inconsistency between them, it must arise from the last clause in section 303 of the Code, that there may be allowed to the prevailing party certain sums by way of indemnity, termed costs, or from something peculiar in the general policy of the Code against making any difference in the rate of costs between cases generally and some of a special character. I do not think that any affirmative provision for an allowance of specified sums, under the name of costs, for expenses in cases generally, is inconsistent with a provision for further sums as costs in particular cases. The sums allowed by the Code are in fact costs as much as those which were given by former laws; and the effect of the Code and the sections of the Revised Statutes as to double costs is, that in cases generally costs are allowed at a certain rate, but in specific cases at an increased rate. And there does not appear to be anything in the general policy of the Code as to costs which forbids a discrimination between cases as to the amount of allowance. The allowance of double costs, before the Code, was for the protection of officers whose duties peculiarly exposed them to suits, both from being harassed without cause, and from private loss on account of such suits — the state being under a special obligation to guard its public servants from annoyance and loss for acts in the course of their duties. (McFarland v.Crary, 6 Wend., 302.) The propriety of this special protection to public officers, and obligation to afford it, are as great now as they were formerly. There is nothing in the fact that the court may now make an additional allowance, in some cases, which manifests an intention to abolish the right to double costs under former *Page 263 laws; nor is there anything in calling the taxation of costs by the clerk an adjustment, to interfere with the operation of the Revised Statutes giving double costs. The order should be affirmed.