Indianapolis & Northern Traction Co. v. Brennan

• Citation: 174 Ind. 1,91 N.E. 503
• Decision Date: 31 March 1910
• Docket Number: No. 21,010.,21,010.
• Court: Supreme Court of Indiana
• Parties: INDIANAPOLIS & NORTHERN TRACTION CO. v. BRENNAN et al.

174 Ind. 1

91 N.E. 503

INDIANAPOLIS & NORTHERN TRACTION CO.

v.BRENNAN et al.

No. 21,010.

Supreme Court of Indiana.

March 31, 1910.

Appeal from Circuit Court, Howard County.

Action between the Indianapolis & Northern Traction Company and James J. Brennan and others. Judgment for James J. Brennan and others, and the Indianapolis & Northern Traction Company appeals. Motion by appellees to strike out as an item of cost an amount paid as premium to a surety company for becoming surety for appellant on its appeal bond. Motion sustained.

James A. Van Osdol, Blacklidge, Wolf & Barnes, and Miller, Shirley & Miller, for appellant. Smith, Duncan, Hornbrook & Smith, Bell & Purdum, King & Tracy, A. C. Harris, and Frank Cutler, for appellees.

JORDAN, J.

It appears from the records in the office of the clerk of this court that there has been taxed by that officer as costs against appellees in this appeal the sum of $1,010.93, paid by appellant to the Federal Union Surety Company as a premium for its becoming the surety of appellant on its appeal bond executed in the prosecution of the appeal. Appellees have filed a motion to strike out and eliminate this item of cost: First, for the reason that they are not liable to pay such costs; second, that there is no legal warrant for taxing as costs against appellees the money paid by appellant as a premium to said surety company. Appellant bases its right to recover against appellees as costs the amount in controversy upon that part of section 25, which we have embraced in italics, of an act entitled “An act for the incorporation of bonding or surety companies, defining their powers, prescribing the duties of certain officers in connection therewith, authorizing the acceptance of bonds made by an incorporated company, providing penalties for the violation of this act, and declaring an emergency,” approved March 2, 1901. See Acts 1901, p. 63; section 5761, Burns' Ann. St. 1908. This section reads as follows: “Any receiver, assignee, guardian, committee, trustee, executor, administrator or other fiduciary, required by law or the order of any court or judge, to give bond or other obligation as such, may include as a part of the lawful expense of executing his trust such reasonable sum paid a corporation authorized by law so to do, for becoming his surety on such bond or obligation as may be allowed by the court in which, or the judge before whom he is allowed or required to account, not exceeding one per cent. per annum of the amount of such bond or obligation by such surety executed: And in all actions or proceedings the party entitled to recover costs may include therein such reasonable sum as may have been paid by him to such corporation for executing or guaranteeing any bond or obligation therein.” (Our italics.) Counsel for appellees contend that the portion of this section italicized is invalid or void for the reason that it violates section 19 of article 4 of the Constitution; it being a matter not within the scope of the title nor properly connected with nor germane to the subject expressed in the title of the act.

We are of the opinion that this contention of appellees must prevail. Section 19 of article 4 of the state Constitution provides as follows: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which...