20 How. Pr. 378 | N.Y. Sup. Ct. | 1861
This case comes up upon proceedings for an alternative mandamus against the defendant, to require him to charge the several towns in the county of Schenectady with their respective portions of money paid
The defendant made a return to such alternative writ, stating that the superintendent of the poor had made no report from which he (the defendant) could make such charges as were required. To this return the relator demurred. The demurrer was overruled at special term, and that order was affirmed on an appeal, brought by the relator to the general term, with costs.
The clerk of Schenectady county, on the adjustment, of costs for judgment, allowed double costs, as was claimed by the counsel for the defendant, on the ground that the defendant was a public officer, and entitled thereto under the provisions of 2d Revised Statutes, 617, §4, (24.) The relator now appeals from this adjustment.
The first objection raised by the relator was, that the county clerk, in such a case,, had no power to adjust costs, inasmuch as the costs of such proceedings were not provided for by the Code; but were costs allowable, if at all, under the provisions of the Revised Statutes, which clerks of counties had no power to tax. I think this objection is not well taken. By the 65th section of the judiciary act, chap. 280, Laws of 1847, clerks of counties are, by virtue of their offices, made clerks of this court, and vested with all the powers of the clerks of the supreme court under the former system; and the 311th section of the Code recognizes this power. This was directly so held in the eighth district, at general term, in Wheelock agt. Hotchkiss, (18 How. Pr. R., 469.) If the defendant is entitled to double costs, I think the clerk had the power to adjust them. (See also Bortle agt. Gilman, 19 How. Pr. R., 3.)
The court of appeals have also settled the question now, that the Revised Statutes, allowing double costs, are not abrogated by the provisions of the Code, but are in force. (See also Bortle agt. Gilman, supra.) Besides, the 47lst
The next objection raised to the adjustment is, that double costs are only allowed by the Revised Statutes in actions; and it is insisted that a proceeding by mandamus is not an action. To determine this objection it becomes necessary, first: to ascertain what is meant by the use of the word, or term, action, in legal parlance.
Excluding the Code definition, at present, as inapplicable, and finding in the Revised Statutes no definition limiting its use from what it has ordinarily been understood to mean by the profession, by the common law authorities, and by examination of the elementary writers and law lexicons, we may assume that the common law meaning, or definition, remains still unchanged.
One of the oldest of English legal definitions, of “ action,” is that given by Lord Coke ; that “ it is the form of a suit given by law for the recovery of that which is one’s due, the lawful demand of one’s right.” (Co. Litt., 285, 285, a.) Blackstone, traces his definition, back to the civil law; in which Cicero defines an action, to be “ the means by which men litigate with each other.” (3 Blackstone Com., 117.) Bracton, I think, embodies the whole idea of an action much better, in the Latin expression, “ trinus actus, trium personarum,” which seems to include not only the act of a plaintiff, who makes a lawful demand, and the act of a defendant, in opposition; but also, the act of a court in passing judgment between the parties. This is full and comprehensive, and I think, best expresses our notion of a legal action, in the ordinary understanding of the term. This would include the less comprehensive, and less perspicuous definition of an action, given in the Code, (§ 2,) to wit: “ An action, is an ordinary proceeding in a court of
It is obvious from the very character of the proceedings intended, by the language, “ suits” and “ proceedings,” in the sections above quoted, that actions, according to the definitions we have above given, were intended. I am, therefore, clear in my view of its meaning, that the proceeding now in question, was an action; though I do not regard that conclusion as even necessary for the purpose of determining the right to costs in this case. For that purpose, we need not distinguish it from “ a proceeding upon mandamus.” Either would entitle to costs, if the court so ordered.
The next objection taken to the adjustment, is, that the proceeding is not brought against the defendant “ for or concerning the omission to do anything which it was his official duty to perform.”
I think the facts are against this objection. The defendant, as county treasurer, was charged in the alternative mandamus, that it was his duty as such officer, in the accounts kept by him with the several towns in his county, respectively, to charge them, respectively, with certain portions of money paid by the superintendent of the poor of said county for the support of the poor of such towns; as required by statute; and the said writ also charged the said defendant, as such officer, among other things, as follows : “ and whereas, you, in disregard and neglect of the statute
The defendant, in compliance with this mandate, made a return to the writ, showing cause. The relator demurred to the return; the demurrer was overruled, and, in effect, the return was held good ; or, in other words, it was held that, as such officer, he had not omitted his duty. The result was a judgment in favor of the defendant, upon demurrer, in an action by mandamus against him as county treasurer, which is a public office, on a charge made for and concerning his omission to charge the several towns of his county in the manner required by statute, and which act of disregard, neglect and omission he was so charged with by the said mandamus. This act, the relator claimed, it was his official duty as such officer to have performed. The effect of the judgment is that he had performed his duty. This, it seems to me, is a charge, making an issue against a public officer for omitting to do his duty, and is clearly within the spirit, as well as the letter of the statute made for their protection, as now extended by the Revised Statutes of 1830. (See revisor's notes, vol. 3, 2d ed., p. 798.)
The various decisions of the courts, that the statute allowing double costs to public officers did not apply to acts of nonfeasance, but only to malfeasance, were cases before the Revised Statutes extended the former provision. Such were the cases in 2 Cow. R., 527 ; 5 John. R., ,182 ; 1 Wend., 24.
The disbursement for verifying the return of the defendant I do not think was technically necessary; but it was a disbursement at the legal rate, incurred in good faith, and it doubtless appeared to the clerk to he necessary. (2 R. S., 653, §7.) This authorized its allowance. The motion must be denied, and the taxation affirmed, with costs.