142 N.W. 919 | N.D. | 1913
Lead Opinion
(after stating the facts as above). Appellants’ first objection is to the allowance of the item of $125.50 “for making transcript, including exhibits and binding.” Their first contention is that these costs or disbursements are provided for in ¶ 3 of § 7174, Rev. Codes 1905, where an allowance of “$5 for a statement of the case and $2 more where it exceeds 50 folios,” is provided for. In this they are clearly in error. Paragraph 3 of § 7174 relates to what are commonly called and known as “statutory costs,” and not to disbursements, and has no application to the charge before us. This is provided for in § 7177, Rev. Codes 1905, which provides that “in all actions and special proceedings the clerk must tax as a part of the judgment in favor of the prevailing party his necessary disbursements, as follows : The legal fees of witnesses and of referees and other officers, the necessary expenses of taking depositions and of procuring evidence necessarily used or obtained for use on the trial, the legal fees for publication when publication is made pursuant to law, and the legal fees of the court .stenographer for a transcript of the testimony when such transcript is used on motion for a new trial or in preparing a statement of the case.” Counsel lays emphasis upon the words, “for making transcript, including exhibits and binding,” used in the bill of costs
Appellants’ next objection is to the- allowance of $55.30 for stenographer’s fees for taking testimony. He says: “As appears from the face of the record, this case was an equity case. It was tried before the court, who ordered the evidence to be taken by the stenographer of the tenth judicial district. There was no justification for charging up the fees of an official who was a court stenographer and who under the law was doing that which the judge was required to do, take the testimony, and therefore that item was improperly included in the bill of costs.” We can, however, hardly see the force or the logic of this objection. We are not here called upon to decide whether the case was one in which a referee could or should have been appointed by the court, for the parties expressly stipulated that such an appointment could be made. We find in the record, indeed, no objection to the reference, but, on the other hand, in the statement of the case the following statement: “In. accordance with the stipulation hereto attached, entered into and between the parties at Dickinson, Stark county, North Dakota, agreeing that Mr. Geo. Schneupper, court reporter of the sixth judicial district, North Dakota, shall take and report the testimony in the above-entitled case, hearing was had on the 18th and 19th day of March, 1907, at Dickinson, North Dakota, and the testimony was taken by the said Geo. Schneupper at that time.” We also find the following: “This case having been in the first instance referred to a referee to take testimony and report, and a portion of the said testimony having been taken before the said referee, and a portion before a notary public in Minneapolis, it is now agreed between all parties in open court that the evidence is before the court with the same force and effect as though originally introduced before the judge of this court in open court.” The first stipulation is not copied into the abstract, though the second one is, but that both stipulations were made appears in the original abstract, and is beyond dispute.
We are unable to see that the trial court in any way abused his discretion in the allowance that he made in this case.
When we come to the allowance of $40 for appeal bonds, we are not quite so well satisfied. The giving of surety company bonds, and the taxation of not more than 1 per cent per year on the amount of the penalty or liability as disbursements on appeals, seem to be fully authorized by §§ 4456, 4457, Eev. Codes 1905. In the bonds in question, however, we are not informed as to penalty, and the statute, in the absence of such definite penalty, merely provides for 1 per cent of the liability. The liability in one case could hardly have been beyond $660, while in the other it could hardly have been beyond $360. It may probably have been that a surety company would not split hairs in srxch matters, and would decline to issue less than a $1,000 bond; but the statute seems plain upon the point that
Counsel also contends that §§ 4456, 4457, are unconstitutional in so far as they permit an allowance for the cost of surety company bonds, and contends that since no allowance is made by the statute for the payment of the cost of bonds when given by private individuals, the clauses referred to are void as class legislation. We do not, however, so hold. Our Constitutions, state and Federal, nowhere in terms use the words, “class legislation.” They merely provide that “no special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.” N. D. Const, art. 1, § 20. All that the 14th Amendment to the Federal Constitution provides is that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” “Class legislation” is not synonymous with “classification,” says the Supreme Court of the United States in the case of Chicago, B. & Q. R. Co. v. Iowa (Chicago,
After all, the intention of the legislature seems to have been to see that satisfactory bonds should and could be furnished in the numerous cases where the giving of bonds are required by our statutes. We have no law making a bond a lien upon real property, and the unsatisfactory nature of personal bonds has been universally recognized. The owner of real property to-day may be without any to-morrow; especially is this true in the migratory West. So, too, the legislature may well have taken cognizance of the fact that it is often difficult to get such personal bonds. It may have, therefore, and no doubt did, recognize the need of some agency that might meet the contingency, and have desired not only to make the surety company bond a valid obligation, but one that could be readily and easily obtained. The day, we believe, has gone by when the courts should explore the upper ether in order to discover imaginary discriminations. We do not believe that the sections in question can be attacked upon this ground.
As far as the allowance of $534.50 for printing briefs and abstracts on appeal, is concerned, we think the appellant in this case has no grounds for complaint. We are of the opinion that there was altogether too much testimony taken in the case, and that the costs are
Nor can we see that the trial court abused his discretion in allowing
The judgment of the District Court is reduced by the sum of $23.60, and in all other respects affirmed.
■ No costs or disbursements will be allowed to any of the parties txpon this appeal.
Rehearing
On Application for a Rehearing, Filed Sept. 2, 1913.
The petition for a rehearing does not change our views in this case and the same is denied. We, however, wish to suggest as another justification for the allowance of the $46.75 for “copying-exhibits used on appeal to the supreme court,” and paid to the clerk of the district court, the portion of § 7177, Eev. Codes 1905, which, among other things, provides that the clerk may tax “the legal fees of witnesses and of referees and of other officersparagraph 11 of section 2584, Eev. Codes 1905, which provides that the clerk may charge “for making certified abstracts of any judgment or certified copy of any judgment, order, or other papers filed or recorded in his office, for the first four folios fifty cents; for each additional folio, ten cents;” and Supreme Court Eule No. 15, 10 N. D. XLVII, 91 N. W. IX, which provides among other things, that “Documents on file in the case and original exhibits, offered in evidence, or properly certified or authenticated copies of such documents and exhibits, shall be attached, and must be made a part of the statement of the case.”