11 Iowa 367 | Iowa | 1860
The determination of this case involves the question, whether since the taking effect of the Revision of 1860, we have now any law fixing the fees of the clerk of the District Court. And whatever confusion or hardship may result from the conclusion, we feel constrained to hold that we have not; and as-a consequence, that respondent had no right to demand the pre-payment of the docket fee, $2,50, as was his right and duty under the Code of ’51.'
Chapter 136 of Part Third of the Code of 1851, provided for the compensation of officers, including the clerk of the District Court. By section 2527 of this chapter, the clerk was required to charge at the commencement of an original suit, $2,50; and this with all other fees had to be (section 2528) paid in advance or secured. Section 4187 of the Revision of 1860, repealed all portions of Part Third of the Code of 1851, and all parts of all acts within the purview of said Revision, which is not in said Revision contained either literally or by numerical designation. No part of Chapter 136 of the Code of 1851, was contained in the Revision of 1860, as it passed the Legislature. Nor is there anything in the present provision now in force in the place of said chapter 136. It is claimed that as reported by the commissioners, the Revision did contain, substantially, the chapter of the old Code “fixing the compensation of officers.” However this may. be, it is undeniably true, that the report was amended by striking out or omitting this chapter, for it is not a part of the act as it finally passed the General Assembly. And thus it has occurred that the General Assembly, while enacting what was regarded and intended as a substitute for Part Third of the old Code, omitted entirely to make any provision on the subject of costs and fees, so far as the same was covered and provided for in chapter 136 of said Part.
That this was done from design, is not pretended. That
The consequences to result from this view, have been,; strongly urged by those claiming that the legislature) intended to re-enact the old law. With these consequences; we have nothing to do, in a case so free from doubt and! uncertainty. It is insisted, however, and is perhaps not! inappropriate, that we should state, to some extent, our.! views as to the rights and duties of the clerk and other offi-; eers under the law as it now stands. • -:
We are not aware that it is in the power of the court to fix-in advance, what costs or fees the several officers shall-charge. The statute, however, has not loft the rule in all respects as it stood at common law. For we have seen that it is declared that costs shall be recovered by the successful; against the losing party. What these costs-shall be, how-ever, is not declared. We know of no remedy therefor, other than, as above suggested, unless the officers, when no fee bill is provided, shall tax costs as heretofore, and leave parties aggrieved, if any, to resort to the courts for their, correction or avoidance. And when so appealed to, courts we doubt not, -would feel bound, as far as possible, to render, full and just compensation to those who by an unusual and extraordinary legislative omission, have been left without-any certain rule for their guidance.
Affirmed.