From a decree entered by the circuit judge on October 16, 1929, the respondent, the Waialua Agricultural Company, Limited, seeks to take an appeal to this court. It filed its written appeal and notice of appeal on October 19, within the time limit of five days prescribed by law, and on the same day and within the time limit of ten days prescribed by law, it paid to the clerk of the circuit court the sum of $171.20 as costs. The petitioner moves in this court to dismiss the appeal on the ground that the respondent "did not, as expressly required by the provisions of the Revised Laws of Hawaii 1925, pay the costs theretofore accrued and duly taxed in said cause, and that the sum of $810.45 theretofore accrued and duly taxed by order of said court was not paid within the time provided by law or at all; that the payment of said costs was in no way waived by petitioner herein." The costs accrued, as entered in the docket of the clerk of the circuit court at the date of the order of the circuit judge taxing costs, were in the sum of $160.70 and at the date of the payment by the appellant of the costs amounted to $171.20, the difference of $10.50 having accrued after the presentation of the bill of costs and before the payment on October 19. On October 15, 1929, the circuit judge allowed total costs in the sum of $2256. This ruling was upon a bill of costs presented by the petitioner and containing the following items: fees of sixty-nine witnesses, $138; mileage of witnesses, $195.44; "paid London commissioner as per affidavit attached, $77.92; paid Oxford commissioner as per affidavit attached, $504.88; paid notary at Port Townsend, Washington, as per affidavit *Page 244 attached, $5.00; paid notary at Cincinnati, Ohio, as per affidavit attached, $5.85; paid William S. Chillingworth as per affidavit attached, $150.00; paid D.K. Sherwood as per affidavit attached, $5.80; 3 witnesses subpoenaed on accounting, $6.00; to accrued costs of court as per clerk's docket, $160.70; 29 witnesses in England called and sworn, $58.00; to costs of transcript as per stipulation, $1,285.38; to drawing petition, $3.00; to two copies thereof, $3.00; to attendance on argument demurrer, $3.00; to attendance on trial, $3.00; to drawing bill of costs, copy and service, $1.00; to attendance on taxation of costs, $1.00," — a total of $2606.97.
The circuit judge allowed $91 in lieu of the first two items of $138 and $195.44, respectively, disallowed the item of $150 paid to Chillingworth and the item of $58 for "29 witnesses in England" and allowed all the other items as claimed in the bill, remarking at the time that the item of $1285.38 for costs of transcript had already been paid by the respondent and was "included for purposes of completeness."
The statute under which this appeal was taken (R.L. 1925, Sec. 2509) reads as follows: "Appeals shall be allowed from all decisions, judgments, orders or decrees of circuit judges in chambers, to the supreme court, except in cases in which the appellant is entitled to appeal to a jury, whenever the party appealing shall file notice of his appeal within five days, and shall pay the costs accrued, and deposit a sufficient bond in the sum of fifty dollars, conditioned for the payment of the costs further to accrue in case he is defeated in the appellate court, or money to the same amount, within ten days after the filing of the decision, judgment, order or decree appealed from." While, as above appears, the ground of the motion to dismiss as originally presented was that items of taxed costs aggregating $810.45 had not been paid by the appellant, *Page 245 the ground upon which reliance was placed by the appellee in argument was that the items of $77.92 and $504.88, or an aggregate of $582.80, paid to the "London commissioner" and the "Oxford commissioner" for their services in taking testimony, had not been paid by the appellant in connection with the perfecting of the appeal. The precise question before us is, therefore, whether under the circumstances of this case the two sums aggregating $582.80, which were paid to the commissioners in England for their fees and expenses in taking testimony, are "costs accrued" within the meaning of section 2509.
Speaking generally, costs are the taxable expenses of litigation. But the word "costs" is susceptible of different meanings. It is used in different senses. Giving it its broadest signification it may include all of the items which are taxed in favor of a successful party, such as the attorneys' fees permitted by statute, fees and mileage of witnesses, stenographers' fees in the making of transcripts, statutory fees for filing papers, for issuing process, for serving witnesses, for judicial hearings and orders and for other judicial charges, which statutory fees go to the government as partial compensation for the maintenance of the courts, and other expenses incurred by the successful party and deemed reasonable by the taxing officer. On the other hand it may be so used as not to include some of the items taxed in a bill of costs and so as to include the statutory fees just referred to and other items sometimes termed costs of court. It may also be used as including only the statutory costs which are entered customarily in the docket of the clerk of court and which when collected belong to the government, whether the Territory or the city and county.
That the word "costs" in section 2509 is not used as including all items taxable as costs has been definitely decided by this court in Lufkin v. Grand Hotel Co., 24 Haw. 744, *Page 246 746, 747. This was an equity suit for foreclosure of a mortgage and the appointment of a receiver. The appellee moved to dismiss the appeal on the ground that the appellant had paid only $36.75, being "court costs," and had not paid an item of nearly $7000 which had been incurred for the fees and expenses of the commissioner in advertising and making the foreclosure sale and in fees of the attorneys for the petitioner and the salary and expenses of the receiver. While in that case at the time of the filing of the notice of appeal "there had been no finding by the court fixing the amount of fees, salaries and expenses which were afterwards allowed in the decree which also confirmed the foreclosure sale," that fact was not made the basis by this court for its ruling upon the motion to dismiss. The court denied the motion, saying: "So far as we are aware the question involved in this motion has never been passed upon by this court, though undoubtedly many cases in which such items of expense were incurred have come to this court either with or without such items being paid. It seems to us that the answer to movant's contention is that the items cannot be properly classed as costs of court and therefore do not fall within the statutory provision requiring the payment of the accrued cost to perfect an appeal." Whatever else that decision may or may not have decided, it certainly did decide that not everything which can be properly classed as costs is "costs" within the meaning of section 2509.
In the remaining language of section 2509 there are only two indications, both very slight, as to the sense in which the word "costs" is there used, but both of those indications are in favor of the view that the legislature had in mind only those costs (referred to in the argument in this court as "clerk's costs") which the statute expressly authorizes to be charged by the courts for the filing *Page 247 of papers, for the holding of hearings, etc., and which are to become, when collected, government realizations. One of them is that the bond or cash required to be deposited, "conditioned for the payment of the costs further to accrue in case he" (the appellant) "is defeated in the appellate court," is in the sum of $50 only. While ordinarily that sum is sufficient for the "clerk's costs" as above defined, still, in view of the power conferred upon this court by section 2511 to hear newly discovered evidence in cases appealed from circuit judges in chambers, that sum would not be sufficient to meet the fees and expenses of commissioners appointed to take evidence or to meet other larger expenditures properly taxable as costs in favor of the successful party. The other is the provision that "appeals may be allowed upon like terms as to filing bond and payment of costs, * * * from decrees overruling demurrers or from interlocutory judgments, orders or decrees whenever the circuit judge may think the same advisable for the more speedy termination of litigation." Appeals from interlocutory judgments, orders or decrees may well take place, as for example in partition suits and in suits for the foreclosure of liens, after a somewhat lengthy trial in which considerable expenditures for fees of commissioners, masters and other judicial officers and for other purposes have been incurred, but as far as I know in this jurisdiction it has not been the practice in such cases to tax or to ask for the taxation of bills of costs prior to the taking or perfecting of such interlocutory appeals. Costs other than clerk's costs accrue, of course, at the time of their expenditure or at latest when it is known who the successful party is. They may be taxed considerably later but they always accrue before they are taxed and sometimes long before. The statute provides that these interlocutory appeals shall be "upon like terms" as to the payment of costs as in appeals *Page 248 from final decrees, orders or judgments. I cannot think that in interlocutory appeals the legislature intended to make compulsory the taxation of costs before final decree and to make compulsory the payment of costs as taxed, other than clerk's costs, in order to perfect an interlocutory appeal. The tendency of both of these considerations from the language of the statute is, although slight, in favor of the view that only clerk's costs were referred to in the requirement of payment of "costs accrued" in order to perfect an appeal. That, too, is the more natural and probable meaning intended by the legislature to be attached to the expression under consideration. The provision, it would seem, was intended for the protection of the government in securing for itself payment of the costs prescribed, charges which the courts were authorized to make in partial compensation for the services rendered by the government to litigants in the settlement of their disputes. It would be, I think, a more strained construction to regard the provision as a means of enforcing early payment to the successful litigant of all costs other than clerk's costs which had been awarded to him. For the collection of such additional costs by the successful party from an unsuccessful party the aid of the process of the courts is always available and it is not known until the final disposition of the cause in the appellate court which of the two parties will recover the additional costs. Sometimes it is the appellee, but sometimes, also, it is the appellant. Again, the contrary view, that section 2509 contemplates the prepayment of all taxable costs or even of some costs (like commissioners' fees) other than clerk's costs, would make appeals extremely burdensome in some cases and greatly irregular in burdens as between different cases.
The contention is advanced that fees paid to commissioners appointed to take testimony are costs of court and *Page 249 that under the ruling of this court in Cardozo v. Sociedade,19 Haw. 319, they are a debt of the court or of the government to the commissioners and are to be regarded as "costs of court" and are therefore included within the term "costs accrued" as used in section 2509. I do not recall any instance within my experience of an appropriation made by the legislature of Hawaii for the payment of fees of commissioners to take testimony. I feel safe in saying that there has been none and that the appropriations for the incidental expenses of the courts have not been understood to include such payments. However that may be, it seems to me that at this time and under the circumstances of this case the two items under consideration cannot properly be regarded as costs of court. In the Cardozo case it was held that the circuit judge had the power to direct that the payments to the commissioners to take testimony be considered as costs of court. After presentation of the bill of costs, but before taxation had been ordered, the successful party in that case moved for a direction to that effect by the circuit judge and the question was thereupon reserved to the supreme court whether the trial judge could lawfully so direct, with the result already stated. The statutory provision (R.L. Sec. 2575) is that "the costs of every application for any rule * * * for the examination of witnesses under any commission * * * and of the rule or order and proceedings thereupon, shall be costs in the cause unless otherwise directed either by the judge making such rule or order, or by the judge before whom the trial or inquiry of the cause may be had, or by the court wherein the action shall be depending." There is also another provision (Ib., Sec. 2542) in the chapter relating to "costs" and under the subtitle of "Attorneys' fees" that "all actual disbursements sworn to by an attorney, and deemed reasonable by the taxing officer, may be allowed in taxation of costs." In the case *Page 250 at bar the bill of costs above quoted included an item of $160.70 for "accrued costs of court" and a number of other items for expenditures made or incurred, including the two items in question of payments to the commissioners in England. The bill was supported by the affidavits of two of the attorneys for the petitioner showing that one of them had paid one of the commissioners $417.48 "for the fees, charges and expenses" of said commissioner and that the other had paid $87.40 and $77.92 (these three items amounting in all to the $582.80 in question) for "fees, charges and expenses" of a commissioner and further showing, in the affidavit of the first, that "the testimony of all witnesses called before said commissioner was necessary and relevant" and in the affidavit of the second that all the payments made "were necessary and reasonable." The order made by the court taxed the costs at a total of $2256.53, which included the $582.80 in question. There was no request or order that the $582.80 be taxed as costs of court. I understand the acts done by the parties and by the trial judge to be consistent only with the theory that the $582.80 was being taxed as an "actual disbursement" sworn to by the attorneys and deemed reasonable by the taxing officer and to be wholly inconsistent with the theory that that sum was being taxed as costs of court for which the government was to be liable and which the clerk of the court as the representative of the government was to pay out in the first instance. In other words, I regard these acts of the parties and of the court as meaning that the court "otherwise directed" within the meaning of section 2575. If now, after the expiration of the ten days allowed by law for the payment of costs for perfecting the appeal, this appellant were to be denied an appeal because it failed to regard the $582.80 as "costs of court" within the meaning of section 2575 and therefore as "costs accrued" within the meaning of section 2509, it *Page 251 would be permitting the statutes and judicial procedure to be made traps for the unwary.
After the present motion had been argued and submitted the court requested counsel to produce such evidence as might be found available tending to show what the practice has been in the past under this statute relating to appeals. In response to this request affidavits were filed which had been made by clerks of four out of our five circuit courts and by a number of attorneys. Later cross-examination was had of the statements made by one of the clerks of the first circuit. It is apparent from the evidence that the practice has not been uniform; and yet there is in it, as I think, much to emphasize the correctness of the construction which I am placing upon section 2509. The four clerks of court all testified that in receiving payments in connection with the perfecting of appeals under section 2509 they have not concerned themselves with any costs other than those which at the argument and in this opinion are referred to as the "clerk's costs." In the first circuit, out of slightly over two hundred cases reported by the clerk in his affidavit, it is agreed that in about one hundred and sixty of them there had been no taxation of costs and that therefore only the "clerk's costs" had been paid. Of the remainder (a total of from forty-two to forty-five), I find that in more than thirty cases only the clerk's costs were paid and the additional costs which were taxed were not paid. In the others either both classes of costs were paid or, in a very few instances, the matter is doubtful. In each of the instances in which clerk's costs only were paid it is to be noted that that procedure evidenced not merely the construction placed upon the statute by the attorney who paid, but also the construction placed thereon by the attorney for the appellee, for it does not appear that in any of those instances a motion to dismiss for failure to pay sufficient *Page 252 costs was made. So, also, in all instances in which clerk's costs only were paid that fact is indicative of the view taken by the clerk who received the costs and who represented the government in the transaction, the government being the payee of the costs so paid. I consider that the construction placed by the clerks of court as shown by their acts and omissions is of even greater weight than the construction placed by the paying attorneys. The one hundred and sixty cases in which no additional costs had been taxed are claimed by counsel for the appellee in the case at bar to be of no significance. I think that they do have significance. It may be presumed that in most of them some additional costs were taxable and that in some of them court costs other than "clerk's costs" were taxable. If the statute required or contemplated the payment on appeal of all costs taxed or of all "costs of court," attorneys for appellees may well have been expected, in many if not in all cases, to have secured taxation of costs at the first opportunity in order to make the appeal more burdensome to the appellant and in order, also, to secure an earlier and more certain payment of those additional costs. While the rule of long continued uniform contemporaneous construction cannot be here invoked, nevertheless I feel encouraged by the evidence adduced in thinking that the construction which I place upon the statute is the correct one.
In my opinion the two items aggregating $582.80 are not in this instance costs of court and are not "costs accrued" within the meaning of section 2509 and need not have been paid in order to perfect the appeal; and the motion to dismiss the appeal should be denied.