Tesla Electric Co. v. Scott
| Decision Date | 10 May 1900 |
| Citation | 101 F. 524 |
| Parties | TELSA ELECTRIC CO. v. SCOTT et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Kerr Page & Cooper, for complainant.
Albert H. Walker, for defendants.
The first question raised by this appeal concerns the validity of rules 6 and 16 of this court, so far as they make the expense of printing the evidence in equity cases a part of the costs. The power of the court so to provide was challenged on the ground that section 823 et seq. of the Revised Statutes contain no item concerning the printing of evidence; the argument being that costs are a creature of statute, and cannot be charged in the federal courts, unless by express warrant of an act of congress. Ultimately, no doubt, the power to impose costs must be found in a statute; but the legislature may grant the power in general terms to the courts, and these tribunals may then establish a fee bill by a rule or order that will have the binding force of a legislative act. This grant has already been made by congress, as was decided by Mr. Justice Clifford (Lowell, J concurring) in Jordan v. Woolen Co., 3 Cliff. 239 Fed. Cas. No. 7,516, in which the validity of a similar rule in the First circuit was upheld. The decision was rendered in 1869, before the Revised Statutes were enacted; but the fee bill of 1853 (10 Stat. 161), which was then under consideration by the court, does not differ in any important respect from the sections of the Revised Statutes that are now urged upon my attention. I follow Jordan v. Agawam Co. as an authority, and need not, therefore, discuss the cases that have been cited by counsel. They are collected in Kelly v. Railroad Co. (C.C.) 83 F. 183; and, if any one desires to examine the course of legislation on the subject of costs, he will find the various statutes cited in Hathaway v. Roach, 2 Woodb. & M. 63, Fed. Cas. No 6,213; In re Costs, 1 Blatchf. 652, Fed. Cas. No. 18,284; and The Baltimore, 8 Wall. 388, 19 L.Ed. 463.
The second objection must be sustained. The testimony was taken before a United States commissioner, who has been allowed by the clerk $3 a day for attendance, and 30 cents a folio including in the latter sum the expense of a stenographer. This appears to be the practice in the Second circuit (Edison Electric Light Co. v. Mather Electric Co. (D.C.) 63 F. 559), and I am told has been the practice in this district also. Its correctness is now attacked, however, and the rightfulness of the charge must be decided according to the law, and not according to the practice. In my opinion, the law is clear. Section 847 allows a United States commissioner 20 cents a folio for taking and certifying depositions to file, and section 823 declares 'that no other compensation shall be taxed and allowed. ' The charge of testimony is not 'attending to a reference in a litigated matter * * * in pursuance of an order of the court. ' The function of an examiner in equity is to take and certify the depositions. No other duty is...
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...terms to the courts, which in turn may make rules or orders under which costs may be taxed and imposed. (11 Cyc. 24, 25; Tesla Elec. Co. v. Scott, 101 F. 524; Jordan v. Agawam Woolen Co., 13 F. Cas. No. Waite v. Vinson, 18 Mont. 410, 45 P. 552.) In this state the prevailing party on appeal ......
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