People ex rel. Magee v. Densmore

Welles, J. The counsel for the relator supposes that the court, on granting the peremptory mandamus in this case, was bound by law to grant costs, by force of the statute, (2 R. iS. 619, § 41,) and it appears from the affidavit of the deputy clerk who entered the rule, that if his attention had been called to the section of the statute refered to, he would himself have so entered the rule, without reference to the question whether the court had actually granted costs. I think, however, that the court had a discretion to allow or refuse costs. By the sixth section of the “ act relative to proceedings in suits commenced by declaration and for other purposes,” (Laws of 1833, p. 395, § 6,) it is provided that “ in suits and proceedings upon writs of mandamus, the supreme court may) in its discretion, award or refuse costs to any party therein.” But independent of the law of 1833, I think it very questionable whether the present case came within the provision of the section of the revised statutes referred to. The case provided for there is where the mandamus is granted “ upon the coming in of a return to a previous mandamus.” In this case there was no return to the alternative mandamus. (The People, ex rel. Mathews, v. Onondaga C. P. 10 Wend. 598.) As the law now stands, therefore, I think it safe to say that in all cases of mandamus, the granting of costs to the one party or the other, is exclusively a matter of discretion with the court, and they may be awarded or refused, as the equity and justice of each particular case may require. [560] The only remaining subject of inquiry is, did the court upon granting the rule for a peremptory mandamus, actually order the defendant to pay costs ? If they did, and by the inadvertence of the counsel or the clerk, it was omitted to be inserted in the rule, I think I should be justified in ordering the amendment moved for. But this should be made clearly to appear; as the present court have no power to review the proceedings of the late court. And if that court did not decide that the relator should have costs, the order being sufficient on its face to be operative, I think it must now be regarded in the same light as if it had in terms denied costs. The affidavits entirely fail to show that costs were in fact granted by the court, upon ordering the peremptory mandamus. The only witnesses on the subject are Mr. Howell, the attorney for the relator, and Mr. Howard, the deputy clerk. They both state in their affidavits that the order was granted by default. Neither says a word as to what the rdecision of the court actually was, on the subject of costs. I infer from the affidavit of the deputy clerk, that the court did not in fact grant costs; although he would have entered the rule with costs upon his own responsibility, had he understood the law the same as when his attention was afterwards directed to the statute. The motion is denied, but without costs.