United States v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 19 May 1916
• Parties: UNITED STATES v. MINNEAPOLIS, ST. P. & S.S.M. RY. CO.
• Court: U.S. District Court — District of Minnesota

235 F. 951

UNITED STATES v. MINNEAPOLIS, ST. P. & S.S.M. RY. CO.

United States District Court, D. Minnesota, Fourth Division.

May 19, 1916

R. V Gleason, of Minneapolis, Minn., for appellant.

Alfred C. Jaques, of Duluth, Minn., for the United States.

BOOTH District Judge.

This action was brought by the United States against the defendant railway company, alleging a violation of the Hours of Service Act (34 Stat. 1415). Thirteen causes of action were united in the complaint. The first had reference to an alleged offense at Winger, Minn., on the 21st of November, 1914, in connection with a certain employe named Sprague. The other 12 causes of action were in connection with alleged offenses at Thief River Falls, Minn., in connection with other employes. In other words, the first cause of action was with reference to a different offense, alleged to have been committed at a different time, in connection with different employes, from those of the other 12 causes of action. On the trial the court found in favor of the plaintiff on the first cause of action, and in favor of the defendant upon all the remaining causes of action. Judgment for $100 and costs was ordered in favor of the plaintiff.

In presenting its bill of costs for taxation, plaintiff included two items, of $30 each, as witness fees, for witnesses who did not testify relative to the first cause of action, upon which the plaintiff recovered, but did testify relative to the remaining causes of action, or some of them, upon which causes of action the court found in favor of the defendant. Defendant objects to these two items, of $30 each, and has appealed from the clerk's taxation which included these items.

1. The first claim of the defendant is that the statute under which the action was brought is a penal statute, and that such costs, if authorized at all are authorized by virtue of section 974, R.S. (Comp. St. 1913, Sec. 1615), which reads as follows:

'When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs.'

Defendant further contends, inasmuch as each cause of action in the complaint was for a separate and distinct violation of the act in question, that to allow the items of disbursements incurred in connection with the causes of action upon which plaintiff did not recover judgment would be in effect to impose a penalty upon the defendant for offenses of which it has been acquitted. This contention of the defendant, at least as to the nature of the action, cannot be sustained. While it may be true that the statute in question is in some aspects a penal or quasi penal statute, nevertheless the actions brought under it for the recovery of fines, are civil actions.

Actions to recover penalties under this statute and under similar statutes, have long ago been held to be civil actions, and the question is no longer an open one. For cases under the Alien Immigration Act, see United States v. Regan, 232 U.S. 37, 34 Sup.Ct. 213, 58 L.Ed. 494; Hepner v. United States, 213 U.S. 103, 29 Sup.Ct. 474, 53 L.Ed. 720, 27 L.R.A. (N.S.) 739, 16 Ann.Cas. 960. Under the Safety Appliance Act, see C., B. & Q. Ry. Co. v. United States, 220 U.S. 559, 31 Sup.Ct. 612, 55 L.Ed. 582; United States v. Cent. of Ga. Ry. Co. (D.C.) 157 F 893. For cases under the Twenty-Eight Hour Law, see Atchison Ry. Co. v. United States, 178 F. 12, 101 C.C.A. 140; M., K. & T. Ry. v. United States, 178 F. 15, 101 C.C.A. 143; United States v. Southern Pac. Co. (D.C.) 157 F. 459; United States v. Baltimore & O.S.W.R. Co., 159 F. 33, 86 C.C.A. 223; United States v. Phila. & R. Ry. Co. (D.C.) 160 F. 696; United States v. Southern Pac. Co. (D.C.) 162 F. 412; Mont. Cent. Ry. Co. v. United States, 164 F. 400, 90 C.C.A. 388; New York Cent. H.R.R. Co. v. United States, 165 F. 833, 91 C.C.A. 519; United States v. Southern Pac. Co. (C.C.) 172 F. 909. For cases under the Hours of Service Act, see St. Louis, etc., Ry. v. United States, 183 F. 770, 106 C.C.A. 136; United States v. Kansas City & Southern Ry. Co., 202 F. 828, 832, 121 C.C.A. 136; United States v. St. Louis, etc., Ry. (D.C.) 189 F. 954. It has also been held:

'That, if not directed otherwise, such an action is to be conducted and determined according to the same rules and with the same incidents as are other civil actions. ' United States v. Regan, supra.

Among the incidents to such an action are costs and disbursements. Grant Bros. v. United States, 232 U.S. 647, 665, 34 Sup.Ct. 452, 58 L.Ed. 776.

2. The question of costs and disbursements must therefore be decided upon the same principles as are involved in other civil actions. Even though it may be conceded that authority to impose costs is found in section 974, R.S., still that section does not provide what the items of costs are which may be imposed, and resort must be had elsewhere. At common law, originally, no costs could be recovered by either party, and costs, as such, are either creatures of statute, or of usage now long established. Antoni v. Greenhow, 107 U.S. 769, 781, 2 Sup.Ct. 91, 27 L.Ed. 468; Lowe v. Kansas, 163 U.S. 81, 85, 16 Sup.Ct. 1031, 41 L.Ed. 78; Railway v. Ellis, 165 U.S. 150, 166, 17 Sup.Ct. 255, 41 L.Ed. 666; United States v. Davis, 54 F. 147, 153, 4 C.C.A. 251.

The right of the prevailing party in civil actions at common law to recover costs in the federal courts is now firmly established. Kittredge v. Race, 92 U.S. 116, 23 L.Ed. 488; United States v. Schurz, 102 U.S. 378, 407, 26 L.Ed. 167; Trinidad Asphalt Co. v. Robinson (C.C.) 52 F. 347; Primrose v. Fenno et al. (C.C.) 113 F. 375; Fenno et al. v. Primrose, 119 F. 801, 56 C.C.A. 313; Western Coal & Mining Co. v. Petty, 132 F. 603, 65 C.C.A. 667; Scatcherd v. Love, 166 F. 53, 55, 91 C.C.A. 639; Corporation of St. Anthony v. Houlihan, 184 F. 252, 255, 106 C.C.A. 394. But the exact basis upon which this right rests is not uniformly agreed upon by the courts. It is probably safe to say that such right rests partly upon almost universal usage, partly upon statutory provisions of the United States, such as sections 823-857, R.S., and partly upon state statutes construed in connection with sections 721 and 914, R.S.U.S. (Comp. St. 1913, Secs. 1537, 1538). Primrose v. Fenno et al. (C.C.) 113 F. 375; Fenno et al. v. Primrose, 119 F. 801, 56 C.C.A. 313; Western Coal & Mining Co. v. Petty, 132 F. 603, 65 C.C.A. 667; Scatcherd v. Love, 166 F. 53, 55, 91 C.C.A. 639; Corporation of St. Anthony v. Houlihan, 184 F. 252, 255, 106 C.C.A. 394.

The right of the United States, when the prevailing party plaintiff in a law action, to recover costs, is also well established, even though, in many such cases, costs could not be recovered by the defendant, though the prevailing party, against the United States. This right on the part of the United States in many cases rests rather upon long-established recognized usage than upon statutory enactment. See United States v. Sanborn, 135 U.S. 271, 10 Sup.Ct. 812, 34 L.Ed. 112; Pine River Logging Co. v. United States, 186 U.S. 279, 296, 22 Sup.Ct. 920, 46 L.Ed. 1164; Grant Bros. Construction Co. v. United States, 232 U.S. 647, 665, 34 Sup.Ct. 452, 58 L.Ed. 776.

In determining the question of what items of costs and disbursements may be taxed, the federal courts follow state practice and state statutes, when practicable, except when an act of Congress makes definite provision for specific items; and the language used in section 983, R.S.U.S. (Comp. St. 1913, Sec. 1624), 'in cases where by law costs are recoverable in favor of the prevailing party,' would seem to authorize this method of procedure. Grant Bros. Construction Co. v. United States, 232 U.S. 647, 665, 34 Sup.Ct. 452, 58 L.Ed. 776; Shreve et al. v. Cheesman, 69 F. 785, 788, 16 C.C.A. 413; Primrose v. Fenno et al (C.C.) 113 F. 375; Fenno et al. v. Primrose, 119 F. 801, 56 C.C.A. 313; Scatcherd v. Love, 166 F. 53, 91 C.C.A. 639. But items of necessary expense may be allowed to be taxed as disbursements, though no provision is found therefor in state or federal statutes. Fenno et al. v. Primrose, 119 F. 801, 56 C.C.A. 313.

3. There is no act of Congress touching the exact question involved in the case at bar, and the question whether a plaintiff, being the prevailing party upon one only of the several causes of action in the complaint, may nevertheless tax disbursements incurred in connection with those causes of action upon which he has not prevailed, has been decided differently in different states. In many of the states the question is determined by the express provisions of the statutes themselves. Such is the case in New York, Missouri, Michigan, Connecticut, Indiana, Massachusetts, and probably other states. In the absence of such a statute, providing what costs and disbursements may be taxed in such cases, it has been held in some states that the plaintiff may tax disbursements paid or incurred in connection with all the causes of action, though he prevail upon only one. See Empire State Surety Co. v. Moran Bros., 71 Wash. 171, 127 P. 1104. Other cases might be cited. On the other hand, that the plaintiff should not be allowed to tax disbursements as to the causes of action upon which he has not prevailed, although he has prevailed upon one, see Lewis v.

Watkins, 3 Lea (71 Tenn.) 174; Railway v. Cofer, 110 Ala. 491, 18 So. 110. Other cases might be cited.

The Supreme Court of the state of Minnesota, so far as I have been able to learn, has not passed upon this precise question. Section 7976, Gen. St. Minn. 1913, contains the following provision:

'In every action in a district court, the prevailing party shall be allowed his disbursements necessarily paid or incurred.'

The prevailing party...