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Booream v. N. Hudson County Ry. Co.

COURT OF CHANCERY OF NEW JERSEY
May 16, 1888
44 N.J. Eq. 70 (Ch. Div. 1888)

Opinion

05-16-1888

BOOREAM v. NORTH HUDSON COUNTY RY. CO.

J. H. Stone, for the motion. John C. Besson, contra.


(Syllabus by the Court.)

On motion to retax costs.

J. H. Stone, for the motion. John C. Besson, contra.

VAN FLEET, V. C. This is an application for retaxation of costs. The complainant, on an application for an injunction, was defeated both in this court and in the court of errors and appeals. Booream v. Railway Co., 39 N. J. Eq. 465; on appeal, 40 N. J. Eq. 557, 5 Atl. Rep. 106. Costs were awarded against the complainant. The defendant annexed five maps to its answer. The accuracy of these maps was verified by the affidavits filed with the answer, and the object of annexing the maps to the answer was to present the subject-matter of the litigation in a form so simple and lucid that it might be comprehended at a glance. The maps have been taxed as affidavits. They have been estimated as containing 500 folios, although they do not in fact contain 3. As the costs now stand taxed, the solicitor is entitled to $100 for drawing 500 folios of affidavits, represented by nothing but the maps, and the clerk, for enrolling a like number of folios, represented by the maps, to $20. It is to these two items that objection is made. The complainant insists that their taxation is without the least warrant in law, and that they should, for that reason, be disallowed.

It is not pretended that the maps contain a sufficient number of words to justify their taxation at 500 folios, but the claim is that they represent labor, which if expended in drawing affidavits, by a person of ordinary skill in such work, would have resulted in the production of that many folios of written matter. The method pursued in taxing maps as affidavits is described in this way: First, it is ascertained how many hours are required by a person of skill in such work to make a copy of the map which is to be taxed as an affidavit, and then an estimate is made of the number of folios of manuscript which a person of ordinary proficiency in such matters can write in that time, and the number of folios of written matter which the map represents. A model, or any other instrument made use of to show a locus in quo, or explain the subject-matter of a litigation, might, it will be perceived, under this method, be taxed as an affidavit, although there was not a word or figure or other sign of language on it. The taxation of costs is regulated by statute. Nothing can be taxed for which a legislative warrant cannot be found. The act regulating fees declares that the officers and persons named in it shall be entitled to demand and receive, for the services mentioned in the act, the feeannexed to each particular service, and no more. Revision, 399, § 2. There are but two provisions under which it can be claimed that the items objected to are allowable. The first regulates the fees which may be taxed for a solicitor, and allows to him, "for drawing every bill, answer, plea, demurrer, replication, and other pleading, and drawing exceptions and other proceeding, for each sheet, twenty cents." Revision, 401. The phrase "drawing other proceeding" has, I believe, always been construed to include affidavits. And the second fixes the fees of the clerk, and is in these words: "For enrolling proceedings, for each folio of one hundred words, six cents." Revision, 1037. The statute defines what is meant by a sheet or folio. It says that "a sheet or folio shall contain 100 words; and, in all cases where an entry of any writing or copy is to be paid for, the said sheet shall consist of one hundred words." Revision, 399, § 1. The collocation thus made of the several statutory provisions bearing upon the question under consideration would seem to show beyond a doubt that nothing is taxable as an affidavit which does not consist of words which may be counted. The test which the statute prescribes, with the utmost simplicity of language, for fixing the amount to be taxed for a pleading or other proceeding, is a count of words. The number of words is made the basis of taxation; and, if there are no words on the instrument sought to be treated as an affidavit, it is evident that it does not belong to the class which the legislature had in view, nor is it possible to bring it, even by straining, within either the words or the spirit of the statute. It should also be remarked that it would seem to be entirely clear, from the language of the statute, that it was the design of its framers to limit the fees which should be taxable to fees for professional services, as contradistinguished from artistic or mechanical services. The services mentioned in that part of the statute now under consideration, and for which fees, at the rates specified, may be taxed, are all professional services, such as a solicitor or counsel can alone render. No provision is made for the taxation of any other kind of service; and yet it is a fact, which I suppose almost every professional gentleman of experience has had demonstrated in his own practice, that there are cases in which a model or a photograph is much more useful, as a means of elucidation, than either an affidavit or a map. But the right to tax does not at all depend on the utility of the thing sought to be treated as an affidavit, nor on the fairness of the scheme under which the number of folios it shall be considered to represent is ascertained, but entirely on the fact whether or not it is professional work or service of the kind which the statute says shall be taxable. If it is not, it cannot be taxed.

But it is said that the method of taxation adopted in this case ought to be sustained on the ground of inveterate practice or long-continued usage. A gentleman connected with the clerk's office for many years, and who is, perhaps, more familiar with its customs than any other person, says, after investigation, that the practice of taxing maps as affidavits, according to the method pursued in this case, has prevailed in the office, without objection, for over 30 years; but how or with whom it originated I am not informed. It has never received judicial sanction. There is nothing to support it, except it appears that many years ago the person who happened to be clerk adopted it, and that since then his successors in office have followed it, and, from its adoption to the present, counsel, whose clients' interests were injuriously-affected by it, have submitted to it. The acquiescence of counsel is the only thing which, in my judgment, entitles the practice to consideration. The opinion of the profession—and by that I mean a concurrence of judgment by the leading minds of the profession—is always entitled to great respect. An opinion of this kind as to the meaning of a statute, formed so recently after the passage of the statute as to be entitled to be regarded as a contemporaneous construction, and subsequently acted on for many years as its true exposition in the transaction of the business to which the statute relates, willsometimes be adopted by the courts, although it may appear that such construction does not stand in strict accord with what the court may believe to have been the actual legislative intent. This, however, is rarely done except under the pressure of a supreme necessity; as where valuable rights, resulting from the erroneous construction, must be destroyed or seriously impaired if it be not done. Communis error facit jus is a recognized maxim of the law; but it is seldom applied in the administration of justice, and never without the exercise of the utmost caution. Broom, Leg. Max. 139. But it is plain, I think, that the error under consideration is not of the kind which is entitled to adoption by the courts. No rights will be lost or disturbed by its correction. The instances in which counsel have apparently acquiesced in it are probably few in number, and the amount involved in each instance so trifling as not to have attracted attention, or, if observed, it may have been thought that the effort to get a correction would be more expensive to the suitor than to pay the amount illegally taxed. There is nothing in the practice which should induce the court to adhere to it if it is without statutory warrant; and about that I do not think there can be the least doubt.

Nor can the principle which controlled the decision in State v. Kelsey, 44 N. J. Law, 1, be applied to this case. There, it will be remembered, a statute, fairly susceptible of two widely different constructions, had received a practical construction by the joint action of the governor, legislature, treasurer, and secretary of state, under which considerable sums of money had been disbursed from the treasury of the state annually for a period covering more than 50 years. In an action to recover a part of the money so paid, it was held that, while it was quite clear that the statute would not bear the construction which had thus been given to it, still, as all the departments of the government whose duty it was to take action under the statute had understood the statute in this way, and had invariably acted upon such understanding, it was too late for the state to ask to have the construction which had prevailed, without the least deviation, for so long a period, changed. It is manifest that the two cases are so fundamentally different in all their leading features that it is impossible to apply the rule of decision adopted in the first to the decision of the last. The items objected to must be disallowed.


Summaries of

Booream v. N. Hudson County Ry. Co.

COURT OF CHANCERY OF NEW JERSEY
May 16, 1888
44 N.J. Eq. 70 (Ch. Div. 1888)
Case details for

Booream v. N. Hudson County Ry. Co.

Case Details

Full title:BOOREAM v. NORTH HUDSON COUNTY RY. CO.

Court:COURT OF CHANCERY OF NEW JERSEY

Date published: May 16, 1888

Citations

44 N.J. Eq. 70 (Ch. Div. 1888)
44 N.J. Eq. 70

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