Cooper v. New Haven Steam-boat Co.

• Decision Date: 22 November 1883
• Citation: 18 F. 588
• Parties: COOPER v. NEW HAVEN STEAM-BOAT CO.
• Court: U.S. District Court — Southern District of New York

18 F. 588

COOPER v. NEW HAVEN STEAM-BOAT CO.

United States District Court, S.D. New York.

November 22, 1883

Alexander & Ash, for plaintiff.

Owen &amp Gray, for defendant.

BROWN J.

This action was brought by a colored person to recover a penalty of $500 for being expelled on account of his color from the dining-saloon of the defendant's steam-boat Continental on the fourteenth of February, 1879, in violation of section 2 of the act of March 1, 1875, (18 St.at Large, 336,) commonly known as the civil rights act. The defendant interposed various pleas, including a plea to the jurisdiction. The case being called on the calendar of this court for trial, plaintiff's counsel stated that the case seemed to be covered by the recent decision of the supreme court in Robertson v. Memphis & C.R. Co. 3 Sup.Ct.Rep. 18, holding that the act in question was unconstitutional, and that he would discontinue the action claiming the right to do so without costs, on the ground that the court, through the unconstitutionality of the act, was without jurisdiction of the subject-matter. The defendant claimed the right to costs upon discontinuance, and the question has been submitted to the court for its decision.

1. It has long been the settled practice in the federal tribunals not to grant costs in a cause which is discontinued or dismissed on the ground that the court has no jurisdiction of the subject-matter. This has generally been placed on the ground of want of power in the court. The Mayor v Cooper, 6 Wall. 247, 250; Hornthall v. The Collector, 9 Wall. 560, 566, and cases cited; Abbey v. The Stevens, 22 How.Pr. 78, 86; The McDonald, 4 Blatchf. 477; Wenberg v. A Cargo, etc., 15 F. 285 288; Burnham v. Rangeley, 2 Wood.& M. 417, 424.

In many of the state tribunals costs in such cases are given to the prevailing party, where there is jurisdiction of the plaintiff, even in the absence of any state law authorizing it. The subject is elaborately reviewed by Justice WOODBURY in the case last cited, and in Hathaway v. Roach, Id. 63. There seems to be nowhere any diversity of opinion that where a statute exists giving costs 'to the prevailing party' without qualification, costs must be allowed, though the defendant prevail through the want of jurisdiction of the subject-matter. Jordan v. Dennis, 7 Metc. 590; Hunt v. Hanover, 8 Metc. 343, 346; King v. Poole, 36 Barb. 242; Donnelly v. Libby, 1 Sweeny, 259, 287; McMahon v. Mutual Benefit L. Ins. Co. 3 Bosw. 644, 649.

I have recently had occasion to refer to the change made by the Revised Statutes, Sec. 823, in regard to the right to costs. U.S. v. Treadwell, 15 F. 532. That section, in declaring for the first time that the following and no other compensation 'shall be taxed to attorneys, etc., except in cases otherwise expressly provided by law,' seems to be as broad and unequivocal a statutory allowance of costs as is provided by the statute of Massachusetts or by the New York Code, giving costs 'to the prevailing party.' Section 983 of the Revised Statutes is taken without change from the fee bill of 1853, (St.at Large, 168,) and provides that the fees of the clerk, marshall, and attorney, etc shall be included in the judgment against the losing party wherever by law costs are recoverable in favor of the prevailing party. ' The subsequent enactment of section 823 gives costs 'except where otherwise expressly provided by law,'-- that is, by statute; and in connection with section 983 it would seem to entitle the prevailing party to these costs without qualification, unless there is some express statutory provision to the contrary; and the...