McGowan v. City of Burns ( 1943 )

This matter is before us upon objections made by the plaintiffs to the following items which are included in the bill of disbursements filed by the defendant:

Copy of the transcript of testimony ____________ $ 7.25 Amount paid for printing respondent's additional abstract of record ___________________________ 38.00

The objection to the first item is well founded and must be sustained: Section 10-912, O.C.L.A.; and see Campbell v.Corley, 140 Or. 462, 3 P.2d 776, 13 P.2d 610,14 P.2d 455.

The additional abstract of record consisted of a printed copy of the opinion rendered by the trial judge. As printed, the opinion is thirty-one pages long, exclusive of cover and flyleaves.

Section 216 of the Code of Civil Procedure, Laws of 1862, said:

"* * * The court may deliver any argument or reason in support of such decision, either oral, or in writing, separate from the decision, and file the same with the clerk."

That section of our laws, with the passage of time, became § 158, Ore. Laws. Chapter 211, page 396 of 1925 Session Laws, amended § 158, but retained the words just quoted. Chapter 165 of 1927 Session Laws amended § 158 (as amended by the 1925 Session) by adding to it additional provisions, but in so doing omitted the words just quoted.

Undoubtedly, the power to state the reasons which prompt a decision belongs inherently to every judge of a court. It is a component of the power to adjudicate. A statement of the reasons is frequently essential to the due administration of justice. The source of the power is not a statutory enactment, but the nature of the judicial office. The omission made in 1927 of the above-quoted words clearly did not deprive the judges of this state of their right to file in the records of the cause a memorandum decision, or state from the bench, while deciding the case, the reasons for the decision.

Rule 19 of the Canons of Judicial Ethics adopted by the Oregon State Bar says:

"In disposing of controverted cases, a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooked serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion of arbitrary conclusions, promotes confidence in his intellectual integrity and may contribute useful precedent to the growth of the law."

Rule 19 of the Canons of Judicial Ethics adopted by the American Bar Association in 1924 is to the same effect. See 62 Reports of American Bar Association, page 1124.

Several of the purposes served by a careful statement of the reasons which prompt the trial judge's decision are stated in the above-quoted canon. We shall mention another. A carefully prepared decision which marshals the evidence applicable to the several issues, which states the trial judge's conception of the facts, which sets forth his understanding of the applicable legal principles, and which shows the manner in which he applied those principles to the issues, not only enables counsel to prepare their assignments of error with greater precision but also affords the appellate court judges an opportunity to perform their work of review with a knowledge of the reasons which brought the trial judge to his conclusion.

Judge Cardozo, in the introduction to his classic entitled The Nature of the Judicial Process, says:

"We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case. He is the ``living oracle of the law' in Blackstone's vivid phrase. Looking at Sir Oracle in action, viewing his work in the dry light of realism, how does he set about his task?

"The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that precedents are ultimate sources of the law, supplying the sole equipment that is needed for the legal armory, the sole tools, to borrow Maitland's phrase, ``in the legal smithy.' Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by the process of interaction, they have modified in turn. * * * But unless those conditions are present, the work of deciding cases in accordance with precedents that plainly fit them is a process similar in its nature to that of deciding cases in accordance with a statute. It is a process of search, comparison and little more. Some judges seldom get beyond that process in any case. Their notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule."

Surely it is unnecessary to say more in order to indicate the value, in a reviewing court, of the reasons which prompted the trial judge to come to his conclusion.

Two decisions of this court passed upon the proper manner of bringing before this court the trial judge's opinion.

In Thomsen v. Thomsen, 118 Or. 614, 228 P. 832, 245 P. 502,247 P. 808, this court denied a motion to attach to the transcript the trial judge's opinion. In so doing, the decision said:

"As such an opinion, it had no place in the files of record, although we might, upon a hearing, be disposed to consider it, as we would the opinion of any court upon questions of like character."

In Richards v. DeLin, 135 Or. 8, 282 P. 119, 294 P. 600, (a suit in equity) the decision sustained a motion to strike from the files the respondent's additional abstract of record which contained only the opinion of the trial judge and the findings of fact and conclusions of law. We quote from the decision:

"The additional abstract of record in question contains nothing essential to an understanding of the questions presented on appeal. * * * The written opinion of the lower court is often helpful. But it has no place in an abstract of record. It more properly belongs in a brief to be considered in the nature of an argument."

In the present instance, as we have indicated, the opinion of the trial judge was printed by the respondent under the title of Additional Abstract of Record. The respondent's brief quoted from it, as did also our opinion.

The two decisions from which we quoted indicate that the trial judge's opinion as printed should have been a part of the brief and not of the abstract of record; but that error alone cannot justify an order denying the respondent reimbursement for this item of expense; provided the charge made is no more than the amount respondent would have spent had it made the opinion a part of its brief. Without doing violence to substance, the opinion can be deemed a part of the respondent's brief. The printed pages, omitting cover and flyleaves, are thirty-one in number. Under Section 2, Rule 19, of this Court:

"The prevailing party is entitled to recover the actual cost of printing his * * * brief (not exceeding 40 copies) in the sum of not more than $1.25 a page, including cover."

Thirty-one pages at a cost of $1.25 per page totals $38.75. The actual charge entered in the bill of disbursements for this item is $38. Respondent's brief was twenty pages in length, and for it there is entered in the bill of disbursements a charge of $25; that is $1.25 for each of the twenty pages. Hence, it seems that the respondent has charged less for printing the memorandum decision as an additional abstract of record than it would have charged had it added it to its brief. The appellants, seemingly, have no occasion for complaint.

Although the practice of announcing the decisions in difficult cases through the medium of memorandum decisions is commendable, nevertheless, there are appeals in which a copy of the trial judge's opinion is of no value. The rules of this court contemplate that nothing should be printed that will not facilitate a just determination of the controversy. Although a printed copy of the memorandum opinion, when it is applicable to the issues presented on appeal, is very valuable, it ought not be printed if it is inapplicable to the assignments of error. Likewise, if some parts of the memorandum opinion will be of no consequence to the issues presented to this court, those parts ought not be printed.

We do not mean to imply that it is necessary that the memorandum opinion must be printed for it to gain the attention of this court. In the instant case the memorandum opinion was filed with the clerk of the circuit court, and in that manner came to this court. But the mere fact that the opinion was part of the transcript cannot deny the defendant the right to enter this item of expense in the cost bill; it is nothing unusual for a brief to contain parts of the typewritten record, or excerpts from the decisions of the courts. Whether a counsel will subject his client to the expense of printing parts of the typewritten record or quotations from the decisions found in the Reports is a matter for his determination. Disbursements made for unnecessary printing will not be allowed, but printing parts of the typewritten record or excerpts from decisions which are reasonably necessary in order to present a contention, are not deemed unnecessary. We cannot say that the printing of this memorandum decision was an item of expense for which a good reason could not be assigned.

The objections to the item of $38 are overruled; the one to the item of $7.25 is sustained.