Hughes v. Applegate , 123 Iowa 230 ( 1904 )

Ladd, J.

The court, in ordering the petitioner’s- discharge on writ of habeas corpus, necessarily adjudged his restraint at the hospital for the insane illegal. Section 4459 of the Code provides that: “If the plaintiff is discharged, the costs shall be taxed to the defendant, unless he is an officer holding the plaintiff in custody under a warrant of arrest or commitment or under other legal process, in which case the costs shall be taxed to the county.” As defendant was superintendent of the hospital, he was an officer within the meaning of this statute. He held plaintiff in custody by virtue of an order of the district court of Polk county. Possibly, as contended by appellant, the statutes prior to the enactment of chapter 93 of the Acts of the Twenty-Ninth General Assembly (Laws 1902, page 58), did not authorize the court to order the restraint of an habitual drunkard in one of the hospitals for the insane, nor the superintendent thereof to receive him — a point we do not deem it necessary to decide. It is enough for the purposes of this case that the defendant, as an officer, did restrain the plaintiff of his liberty, and so did by virtue of a commitment from the court. The very object of this statute was to shield officers from the burden of costs incurred in testing the validity of the orders and processes of the court which they in good faith undertake to carry out. It is only when the confinement for some reason is illegal that there is any occasion for the taxation of costs to any one except the plaintiff. But against what county are they to be taxed ? We think that out of which the warrant, commitment, or other legal process issued is intended. The inception of the wrong was there, and the subsequent restraint is merely a continuation of what was there begun. Moreover, all the proceedings ordinarily have relation to an inhabitant of that county. There is nothing to indicate that the county in which the petitioner is restrained is intended, and, as the place of hearing is fixed by the proximity of the judge alone, the costs ought not to be taxed against the county where this occurs. Section 4458 merely requires the order of the judge, when the writ is granted, to be filed with the clerk of the district court of the county wherein the final proceedings are had, and a memorandum thereof to be entered in the judgment docket. This points out the place where the records may be found, including the order taxing costs, but furnishes no intimation of the party against whom these should be taxed. — Affirmed.