People v. Onondaga C. P.

[599] By the Court, SUTHERLAND, J. It might well have been questioned, previous to the act of 1833, giving power to this court in its discretion to award or refuse costs in suits and ceedings upon writs of mandamus, whether costs could erly be awarded upon granting a peremptory mandamus, where no return had been made to the alternative writ, and where there had been no appearance by the party to be affected by it. By the revised statutes, this court are authorized to award costs to the relator whenever a peremptory mandamus shall be granted, upon the coming in of a return to a previous writ, costs, writ R. S. 619 § 41. This provision would not authorize an award of costs where a return was not made. The act of 1833 however is broader in its terms; its language is "in suits and proceedings upon writs of mandamus the supreme court may in its discretion award or refuse costs to any party there in Laws of 1833 p. 395 § 6; and aithougifit is susceptible of the construction that its object was simply to make costs in cases which were before authorized subject to the discretion of the court instead of its being mandatory upon the court to grant them yet it admits of a larger and more extended coii struction; and I feel not disposed to -disclaim the jurisdiction which the statute confers. The motion therefore is denied~ but without costs