Opinion
06-23-1903
McMULLIN v. DOUGHTY.
J. D. McMullin, for the motion. H. A. Drake, opposed.
Action by Mary B. McMullin against Sarah U. Doughty. On application for decree. Granted.
J. D. McMullin, for the motion.
H. A. Drake, opposed.
MAGIE, Ch. Vice Chancellor Grey, to whom this case was referred, has advised a decree therein, containing a blank space for the amount of an allowance to complainant of a counsel fee to be included in the taxed costs, and has reported to me that $400 is a reasonable sum to be allowed. This course has been pursued by him under suggestions made by me to all the vice chancellors as to the practice under the provisions of section 91 of the chancery act of 1902. By the terms of that section, I have concluded that the Legislature has intended to confer on the Chancellor discretionary power to make certain allowances, to be included in the complainant's taxed costs, and that it is my duty to consider the application for the exercise of that power. In respect to causes heard by vice chancellors, I think the application should be primarily made to the vice chancellor, and that he should report whether any allowance should be made, and what Would be a reasonable sum to allow. In order to preserve uniformity in the exercise of such discretion as is conferred on the Chancellor, the parties will be heard by me, if desired, in respect to the allowance reported. In this case the parties have been heard, and defendant's counsel objects to any allowance.
The objection is first put on the ground that the legislation in question is obnoxious to constitutional restrictions, either that of the Constitution of the United States forbidding any state to deny to any person in its jurisdiction the equal protection of the laws, or that of our Constitution forbidding any general law to include any provision of a private, special, or local character, or that forbidding the passage of any private, local, or special law granting to any individual any exclusive benefit. His contention is that, by section 91, a benefit is conferred on successful complainants in chancery suits which is not conferred upon successful defendants. He supports his contention by numerous cases in the state and federal courts in which legislation conferring power to award allowances to parties in actions against certain corporations, such as railroad companies, or in actions against such corporations for certain tortious acts, have been pronounced invalid. But the legislation under consideration is capable of being distinguished from that dealt with in the cases cited. It affects a whole class of litigants, viz. complainants. It does not distinguish among them by reason of the nature of the action or the character or conduct of the defendants. Why defendants who might be successful in equitable suits are not included in the benefit of this legislation cannot be considered, if complainants in such suits form a proper class for such legislation. That they are improperly classified by this act does not seem to me to be so clear that a court of primary jurisdiction would be justified in pronouncing the legislation for their benefit wholly invalid.
It is further contended that the circumstances do not warrant the allowance recommended. My examination of the case, and my consideration of the reasons given by Vice Chancellor Grey, satisfy me that the discretionary power conferred on the Chancellor should be exercised, and that the amount allowed is not excessive.
The blank in the advised decree will be filled with the sum reported, and the decree signed.