Erickson v. Foote

• Court: Connecticut Supreme Court
• Writing for the Court: HINMAN, J.
• Citation: Erickson v. Foote, 112 Conn. 662, 153 A. 853 (Conn. 1931)
• Decision Date: 03 March 1931
• Parties: ERICKSON et al. v. FOOTE et al.

153 A. 853

112 Conn. 662

ERICKSON et al. v. FOOTE et al.

Supreme Court of Errors of Connecticut.

March 3, 1931

Case Reserved from Superior Court, New Haven County; Carl Foster Judge.

Action by E. Victor Erickson and others against William R. Foote and others for an injunction restraining the defendants from enforcing judgments for costs rendered in favor of the state in an action of mandamus, brought to the superior court in New Haven county and reserved by the court, Foster, J., for the advice of this court.

Part of questions answered in the negative. Remaining questions not determined.

Ernest L. Averill, of Branford, and Thomas R. FitzSimmons, of New Haven, for plaintiffs.

William L. Beers and George E. Beers, both of New Haven, for defendants.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, J.

On January 26, 1926, counsel, retained and employed by the defendant Foote for that purpose, prepared an application for a writ of mandamus against the present plaintiffs, to compel them, as members of the board of assessors of the town of Branford, to include in the assessment list certain property at its true and actual value, and presented the same to the state's attorney for New Haven county, who approved and signed the application. The action was then proceeded with and finally resulted in judgment for the plaintiff which was affirmed by this court. State v. Erickson et al., 104 Conn. 542, 133 A. 683; 106 Conn. 698, 138 A. 787; 108 Conn. 246, 142 A. 800. An appeal from refusal of the clerk to tax costs against the defendants therein was sustained, and costs were thereupon taxed, amounting to a total of $235.31. Subsequently, on application of the defendants the state board of finance and control passed a vote that the state waive these costs. Notwithstanding, the present defendant Foote, through his attorneys, caused executions on the judgments for costs to be issued and placed in the hands of a deputy sheriff (who is also a defendant) for service and levy, which the present action seeks to enjoin.

The legal services in connection with the prosecution of the case of State v. Erickson et al, were rendered by attorneys employed by Foote, and the entire expense of such prosecution has been borne by him. The expenses so paid exceed in amount the costs taxed as above stated.

The reservation presents the questions: (D) Is the defendant Foot entitled to these costs? (E) If not, is he entitled to a sufficient amount to cover his expenses, or (F) to cover the items specifically taxed? The remaining questions (A, B, C, G, and H), relate to the power of the board of finance and control to waive costs and the constitutionality of its action in voting to do so.

The nature of the action of State v. Erickson et al. and the situation of Foote with reference thereto have been definitely settled in former appeals in that case and State ex rel. Foote v. Bartholomew et al., 103 Conn. 607, 132 A. 30; 106 Conn. 698, 138 A. 787; 108 Conn. 246, 142 A. 800; 111 Conn. 427, 150 A. 308, which, for purposes of the present inquiry, is analogous. " Even though the proceeding be nominally taken upon the relation of an individual, the state is itself the real party plaintiff." 104 Conn. 548, 133 A. 683, 685. " The right in question is a public right, and as such one properly to be enforced in a proceeding by the state's attorney." 108 Conn. 251, 142 A. 800, 802; 103 Conn. 618, 132 A. 30. The fact that Foote apparently promoted the action taken by the state's attorney " is only an accident of the particular situation. *** Legally the matter stands in the same way as if *** the state's attorney had gotten his information from Foote or any other person, or had learned of the fact as a matter of common notoriety." 103 Conn. 620, 132 A. 30. 36. The recitals and allegations as to the individual interest of Foote, while not improper, were unnecessary; the verification by him of the applications was superfluous. 103 Conn. 617, 618, 132 A. 30. " The issues involved are such that the State's attorneys act in the public interest and not to assert an individual right." 104 Conn. 550, 133 A. 683, 686.

" Writs of mandamus have a twofold aspect. In one, the purpose is to enforce a private duty owed to the relator and the action, while nominally in the name of the state, is really a proceeding by the relator individually against another individual. State ex rel. Elliott v. Lake Torpedo Boat Co. [90 Conn. 638, 98 A. 580, L.R.A. 1916F, 1033], supra. In the other, the writ is a direct proceeding by the state brought to enforce a public duty." 111 Conn. 432, 150 A. 308, 309. We have held both the Erickson Case and the Bartholomew Case (although the latter was in form one at the relation of a private individual) to be of the last-mentioned class. For this reason we ruled in the Bartholomew Case, 111 Conn. 432, 150 A. 308, that, since the plaintiff was the state, no costs were taxable against it in favor of the respondents as the prevailing parties, on the ground that the statute (section 5913, Gen. St. 1930) " giving a right to costs in general terms will not be construed to include an award against the state, because the state is invested with *** immunities from legal process, mesne and final." This consideration does not preclude taxation of costs in favor of the state, as the prevailing party, against private individuals, and we so ruled, in effect, in sustaining the appeal in State v. Erickson from the refusal of the clerk to tax costs therein, and the state was entitled to collect them. It appears, however, that the state has not only forborne to do so, but its board of finance and control has expressly voted to waive them.

The vital question upon this reservation is whether...