Smith v. Saye , Commissioners , 131 S.C. 378 ( 1925 )

April 13, 1925. The opinion of the Court was delivered by Appeal from an order of his Honor, Circuit Judge Bonham, modifying the order of the Clerk of Court taxing the costs and disbursements on appeal in the above stated case. See report of case, 125 S.E., 269, the preliminary statement of the proceedings in which need not be repeated. The road commissioners were successful appellants in that appeal, and upon due notice the costs and disbursements were taxed by the clerk as follows:

Printing "case" ........................................$ 227.66
Printing argument ......................................   15.50
Docket fee .............................................    3.00
Making and serving "case" ..............................   10.00
Argument ...............................................   25.00
Clerk's costs ..........................................    5.50
________
Total .............................................$ 286.66

The petitioners in the certiorari proceedings excepted to this taxation (objecting to the first two items only), upon the ground that the proceeding of certiorari which resulted in the order of Judge Henry, from which the appeal of the road commission was taken, was a "special proceeding" and not a "civil action," and that there was no statute permitting the allowance of disbursements in other than "civil actions." The exceptions to the clerk's taxation were heard by his Honor, Judge Bonham, who filed an order sustaining the contention of the petitioners, and modifying the taxation by striking out the two items of disbursements, aggregating $243.16. From this order the road commission has appealed.

The appeal presents the single question: Can "disbursements" be taxed against the losing party on appeal in a certiorari proceeding? The real point of controversy is whether a proceeding by certiorari is to be deemed a "civil action" or a "special proceeding." The question is concluded by the case of Rawl v. McCown, 97 S.C. 1;81 S.E., 958, in which it is held:

"Where the private or property rights of the citizens are invaded or threatened by the illegal action of a public body or board, he is entitled to relief, and the Courts will not deny him a remedy. The weight of authority in this country is that those writs which, in England, were originally prerogative writs, and issued only at the instance of the crown, have lost their prerogative character, and now belong to the Courts to be used as other process in the enforcement of private rights and the prevention of private wrongs,"

— which brings the proceeding by certiorari squarely within the definition of a civil action, contained in Section 2, Code Civ. Proc., 1922:

"An action is an ordinary proceeding in a Court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong. * * *"

See, also, the case of Lord v. Bates, 48 S.C. 95;26 S.E., 213, cited and quoted from in the Rawl v. McCownCase, and the cases therein cited, particularly Com. v. Denison, 24 How. (U.S.), 66; 16 L.Ed., 717. Kendall v.U.S., 12 Pet., 615; 9 L.Ed., 1181. State v. Whitesides,30 S.C. 579; 9 S.E., 661; 3 L.R.A., 777; 14 A. E. Enc. L., 92. See, also, where the precise point was decided,State v. Spokane County, 40 Wn., 453; 82 P. 878. Statev. Chittenden, 127 Wis. 468; 107 N.W., 500, and State v.Board, 121 Wis. 44; 98 N.W., 954.

The taxation of disbursements by the clerk is approved, and the order in conflict therewith is reversed.

MESSRS. JUSTICES WATTS, FRASER and MARION concur.

MR. CHIEF JUSTICE GARY did not participate.