Bohart v. Anderson

• Decision Date: 08 June 1909
• Citation: 103 P. 742,24 Okla. 82,1909 OK 142
• Parties: BOHART et al. v. ANDERSON.
• Court: Oklahoma Supreme Court

103 P. 742

24 Okla. 82, 1909 OK 142

BOHART et al. v. ANDERSON.

Supreme Court of Oklahoma

June 8, 1909

Syllabus by the Court.

The sections of the act of the Legislature of Oklahoma contained in chapter 15, p. 160, Laws 1897, relating to the fees of the clerk of the Supreme Court and the payment thereof, are void following Pitts v. Logan County, 3 Okl. 719, 41 P 584, and United States v. MacMillan, 163 U.S. 504 17 S.Ct. 395, 41 L.Ed. 805.

It is a proper rule of construction that the entire act or instrument is to be examined, with a view of arriving at the true intention of each part, and that effect is to be given, if possible, to the whole instrument and to every section and clause. Courts favor a construction which will render every word operative, rather than one which makes some words idle and nugatory.

The terms "fees" and "costs" are often used interchangeably, as having the same application; but accurately speaking the term "fees" is applicable to the items chargeable by law between the officer and the party whom he serves, while the term "costs" has reference to the expenses of litigation as between litigants.

Section 13 of the Organic Act (Wilson's Rev. & Ann. St. 1903, § 73) and chapter 16, title "Judiciary," § 833, of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 642), relating to the fees and compensation of the clerk of the Supreme Court of the territory of Oklahoma, are inconsistent with and repugnant to the schedule of the Constitution, as well as locally inapplicable; hence they were not extended to, nor did they remain in force in, the state.

When the compensation of an officer is not fixed by law at the time he renders a service, but it clearly appears that it was the intention of the lawmakers that he should receive a reasonable compensation, to be fixed by law, until it is so fixed he is entitled to a reasonable compensation, to be determined by the proper tribunal.

A party requiring the service of the clerk of the Supreme Court may lawfully be required to make payment therefor at the time the request for the service is made, and the clerk may lawfully decline to render the service until reasonable compensation is tendered therefor.

In an action between J. A. Bohart and others and Margaret Anderson a controversy arose between Thomas J. O'Neill, counsel for plaintiffs in error, and W. H. L. Campbell, the clerk of the Supreme Court, as to whether the clerk was entitled to demand his fees for filing papers when offered and on refusal to pay the same decline to render the service. Finding for the clerk.

Kane C.J., dissenting.

Thomas J. O'Neill, in proper. Devereux & Hildreth, for respondent.

DUNN J.

This matter is a side issue to the above-entitled cause, arising on a controversy between Thomas J. O'Neill, Esq., counsel for plaintiffs in error, and W. H. L. Campbell, Esq., clerk of the Supreme Court, in reference to the payment of fees for the filing of the papers in the cause. When the same were tendered for filing, counsel for plaintiffs in error was called upon by the clerk to make an advanced deposit. On his declining to do so, this requirement was waived by the clerk, as is shown by the correspondence attached to the motion, and movant informed that, if he did not wish to make the same, it would be necessary to advance money sufficient to cover the fees as earned for filing the papers. Counsel declined to tender or make payment as requested, insisting that the service be first performed.

Our attention has been called to, and we know of, no statute providing for a bond solely for costs incurred in the Supreme Court. The only place, so far as we have been able to ascertain, where a litigant is protected in the money he may expend for fees of the clerk, or other costs, is under paragraph 4746 of Wilson's Revised and Annotated Statutes of 1903, where provision is made for a supersedeas bond. A purported bond of this character appears in the case, and counsel for plaintiffs in error urges this as an additional reason why he should not be called on to advance the fees of the clerk in cash, assuming that such bond would afford full protection to the clerk for any services rendered and fees earned. In this position we are inclined to think counsel is in error, by reason of the well-recognized difference between costs and fees. The difference is set out in a number of authorities, some of which may be found noted under the title "Costs," in 2 Words & Phrases, p. 1638, from which we quote as follows: "Costs and fees are altogether different in their nature generally. The one is an allowance to a party of expenses incurred in the successful transaction or defense of a suit. The other is compensation to an officer for services rendered in the progress of the cause. Bradley v. State, 69 Ala. 318, 321; Howard Building & Loan Ass'n v. Philadelphia & R. R. Co., 102 Pa. 220, 222; Musser v. Good, 11 Serg. & R. (Pa.) 247; Crawford v. Bradford, 2 South. 782, 783, 23 Fla. 404. The word 'costs' is a word of known signification. It signifies, when used in relation to the existence of legal proceedings, the sums prescribed by law as charges for the services enumerated in the fee bill. The terms 'fees' and 'costs' are often used interchangeably, as having the same application; but accurately speaking the term 'fees' is applicable to the items chargeable by law as between the officers or witnesses and the party whom he serves, while the term 'costs' has reference to the expenses of litigation as between litigants. Alexander v. Harrison, 28 N.E. 119, 120, 2 Ind.App. 47." A supersedeas bond providing for the payment to the opposite party of all damages that he may sustain by reason of the appellate proceeding, and all costs in the Supreme Court as provided by the statute, is given primarily for the protection of the adverse party, and we know of no statute which requires the clerk to look to such bond for the fees fixed by law for the services he is required to render. While this bond is suggested by counsel for plaintiffs in error in his brief, we are not certain that it is strictly involved in this controversy by reason of his waiver of the claim to have his case filed by reason thereof and his offer to pay the fees demanded after the rendition of the services. However, as shown above, we incline to the view that this could not change the situation in any way.

To support his claim, movant calls attention to the Session Laws of 1897, which purport to contain a fee bill for the clerks of the district and Supreme Courts of the territory, and refers us to a section thereof which provides that no fees allowed by said act shall be due or demandable until the service for which such fees are payable shall have been performed. Section 63, p. 179, Sess. Laws 1897. This necessarily raises the question of whether or not this act was one of the laws in force in the territory of Oklahoma at the time of its admission as a state, and of such a character that it would remain in force until altered or repealed by law. This presents the question at the outset of whether the territorial Legislature had the power and authority to fix and control the fees and compensation for the clerk of the Supreme Court, and, if not, in our judgment necessarily places upon us the duty of determining what law, if any, does govern. Section 13 of the Organic Act of the territory (Wilson's Rev. & Ann. St. 1903, § 73) provides: "There shall be allowed to the attorney, marshal, and clerks of the Supreme and district courts, the same fees as are prescribed for similar services by such persons in chapter 16, title 'Judiciary,' of the Revised Statutes of the United States." Section 828, c. 16, p. 635, of the Compiled Statutes of the United States of 1901, provides a complete schedule of the fees referred to in this provision. This federal law, under the authority of Pitts v. Logan County, 3 Okl. 719, 41 P. 584, and United States v. MacMillan, 165 U.S. 504, 17 S.Ct. 395, 41 L.Ed. 805, controlled up to the time of the admission of the state; the act of the territorial Legislature in conflict therewith being void. This being true, it necessarily follows that the language of section 63, supra, providing that fees allowed by the act of the territorial Legislature shall not be due until the services shall have been performed, can have no application to this case, for the simple reason that the fees allowed to the clerks of the district and Supreme Courts were not provided for by the territorial act, but by the federal fee bill then in force in the territory of Oklahoma.

The question now arises whether said provisions of section 13 of the Organic Act and the statutes referred to applied and governed after the admission of the state. Section 17 of the schedule to the Constitution provides: "The members of the board of agriculture, bank commissioner, clerk of the Supreme Court, and all other state officers, except as herein provided, or such as may be created, and all clerks and assistants, shall receive such compensation for their services as may be provided by law." Constitutional provisions are intended to operate prospectively, and all doubts must be resolved in favor of such construction. 2 Lewis' Sutherland on Statutory Construction (2d Ed.) p. 1161, § 642. The rule appears to be settled that where the term "may be" is used, unless the contrary appears from the context, it is to be construed as meaning in the future. Board of Commissioners of Pitkin County v. Aspen Mining & Smelting Company, 3 Colo. App. 223, 32 P. 718; Shoemaker, Auditor, et al., v. Smith et al., 37 Ind. 128. See, also, for further cases citing and defining the phrase "may be," 5 Words & Phrases, p. 4447 et seq.

Now let us examine the context in the schedule,...