I respectfully dissent. The provision of section 2509, R.L. 1925, that "appeals shall be allowed * * * whenever the party appealing * * * shall pay the costs accrued," etc., does not expressly place any limitation upon the costs thus to be paid except only the one that such costs shall have "accrued" and it does not expressly confine such costs to any one or more classifications. In Lufkin v. Grand Hotel Co., 24 Haw. 744, 747, this court held that certain items of expense therein set forth could not be properly classed as "costs of court" and that they therefore did not fall within the statutory provision requiring the payment of "accrued costs" to perfect an appeal. *Page 254 In the Lufkin case above cited the terms "costs accrued" and "costs of court" are apparently used interchangeably, but neither term is therein defined other than that it excludes items of expense of the kind set forth in the court's opinion in that case.
Chapter 147, R.L. 1925, entitled "Costs," is arranged in divisions under the four following subtitles, namely: "District Courts," "Circuit and Supreme Courts," "Probate Courts" and "Miscellaneous." Except for these subtitles and except for the heading of section 2545, namely, "Remission of Court Costs," the statutes contain no classification of and no express reference to "court costs." The term is again found, and again without definition, in the rules of the supreme court and in the rules of the circuit courts. Under the subtitle "Circuit and Supreme Courts," in R.L. 1925, chapter 147 on "Costs" above referred to, are two sections only, namely, sections 2542 and 2543. Section 2542 contains four subdivisions headed respectively "Schedule," "Attorneys' Fees," "High Sheriff's and Sheriff's Fees," and "Judge's Fees." Section 2543 provides that "section 2542 shall apply to the justices of the supreme court and the circuit judges when sitting at chambers as well as to the supreme and circuit courts, except as otherwise provided."
The majority opinions hold that all of the items scheduled in section 2542 are not "court costs." I do not dissent from that view. But I am not of the opinion that the remaining items of said schedules constitute a complete list of all costs which may be properly classified as "court costs." There is authority to the contrary. Section 2575, R.L. 1925, provides that "the costs of every application for any rule or order to be made for the examination of witnesses under any commission by virtue of this chapter, and of the rule or order and proceedings thereupon, shall be costs in the cause unless otherwise *Page 255 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."
In Waikulani v. Carter, 12 Haw. 83, a commissioner's fee under the foregoing section, which had been ordered by the circuit judge to be added to the costs of court, was held by this court to be "costs of court;" that term being evidently understood to be either synonymous with or included within the term "costs in the cause" used in section 2575, supra. In theWaikulani case above referred to the plaintiff had discontinued his case and had withdrawn the balance of his deposit, leaving no funds to his credit with which to pay the commissioner's fee. The clerk then charged the amount of said fee against the attorney for the plaintiff under rule 24-c of the circuit courts, which provided that "attorneys shall be liable for costs of court incurred by their respective clients." (The italics are mine.) That the court had in mind the distinction between costs of court and other costs is shown by the recital in the opinion that "costs of court referred to in the rule cover only what are strictly costs of court. They do not include `fees' or disbursements," citing Kanahele v. Wakefield, 11 Haw. 258.Waikulani v. Carter, supra, which was decided in 1899, was followed nearly ten years later by Cardozo v. Sociedade de SanAntonio, 19 Haw. 319, where upon a reserved question of law to this court the trial court was held to have authority to tax a commissioner's fee as "costs of court" and to order the clerk to refund the amount thereof to defendant and to collect the same from plaintiff's attorney under the rule above quoted. In theWaikulani case the clerk was held authorized to collect from plaintiff's attorney the amount of the fee for payment of the same to the commissioner and in the Cardozo case he was held authorized to collect it to *Page 256 reimburse the defendant for the amount advanced by it to the commissioner. In each instance the commissioner's fee was held to be costs of court and to be taxable under the provisions of section 2575 and, semble, it was not only that but it was a proper and necessary charge to be entered in the clerk's docket. This brings me to a consideration of docket charges and their importance or unimportance in determining what are "costs accrued" and "costs of court." Whether or not the clerk's office is the conduit through which the payment of costs, other than those for which he is required by section 2555, and section 4112, R.L. 1925, as amended by Act 12, L. 1929, to account to the government, should be made, the statutes and rules of court do not expressly provide and we are apprised of no uniform or general custom in this respect. If such costs are paid to the clerk and accepted by him, clearly he should make an entry of them, but whether his docket entries include or exclude such items it is apparent that the question of the costs to be paid upon an appeal cannot be determined solely from the docket. In the case at bar we are not apprised of the items which go to make up the clerk's docket entries. The majority apparently is of the opinion that the only costs required to be prepaid upon appeal are the items for which the clerk is required to account to the government; but I can find no authority and no sufficient reason for placing such a limitation upon the meaning of the term "costs accrued" as used in section 2509. On the contrary, there seems to be sufficient and long established precedent for the different construction herein set forth.
The majority apparently differentiates the Waikulani andCardozo cases from the case at bar because of the fact that in the earlier cases the trial court had directly ordered that the fees of the commissioner to take testimony be made costs of court, while in the present case no *Page 257 such order was made. In view of the fact that elsewhere in the opinions referred to the question as to whether or not the clerk is accountable to the government for the costs so chargeable is made the true test as to what are or what are not costs accrued, this distinction cannot be controlling. Nevertheless, taking up the distinction above referred to, it appears to me not to affect the rights of the parties in view of the provisions of section 2575 that the costs of the examination of witnesses under commission shall be costs in the cause unless otherwisedirected. Under this provision omission to direct otherwise would make the commissioner's fees costs in the cause. I cannot concur in the view that the record in this case shows that the trial judge otherwise directed. The facts (a) that the commissioner's fees were paid in advance by the petitioner; (b) that they were sworn to as necessary and reasonable and that the testimony obtained through witnesses appearing before the commissioner was necessary and relevant; and (c) that they were referred to in the affidavit of counsel for petitioner as "disbursements," are insufficient in my opinion to change their character as costs. Costs which are found in the schedule of items for which the clerk is accountable to the government are deposited in advance by the petitioner and if the petitioner were to swear that said amounts were so disbursed, I cannot think that that fact would change the character of any part of such deposits as costs accrued nor relieve the respondent, if he were the appellant, of the duty to prepay them as a condition precedent to allowance of his appeal. Nor can I regard the allowance of the items of the amounts paid the commissioners in plaintiff's bill of costs or the reference therein to "accrued costs of court as per clerk's docket" as a direction otherwise within the purview of section 2575. *Page 258
Assuming that section 2509 is ambiguous in its meaning and that it is therefore open to proof of practical construction, I do not agree that the proof offered showed construction by a practice sufficiently uniform to support the contentions of either party in this respect.
I also fail to find manifested any legislative intent as to what costs specifically shall or shall not be paid upon appeal in enactments in pari materia. It is true that section 2509 provides that interlocutory appeals may be allowed upon like terms as to payment of costs, etc., but what are or are not like terms can only be ascertained from the earlier provisions of section 2509 as to final appeals. A similar provision is found with reference to interlocutory exceptions in section 2515. But neither section 2515 nor any other section provides for the prepayment of costs upon final exceptions (see Territory v.Kauhane, 25 Haw. 307), and therefore the subsequent provision that interlocutory bills of exception upon like terms as to payment of costs, etc., may be certified to the supreme court, probably requires for this purpose the prepayment of no costs whatsoever. No writ of error shall issue except in criminal cases and cases in which there is no money judgment until a bond has been filed with the clerk in favor of the prevailing party conditioned for the payment of the judgment in the original cause in case of failure to sustain the writ of error. (See section 2529.) The three sets of appellate provisions above referred to present no uniform legislative purpose as to the costs thus to be prepaid or secured.
The commissioner's fees taxed herein having not been paid by the appellant and the same being "costs accrued" in the view hereinabove expressed, in my opinion the motion to dismiss the appeal should have been granted. *Page 259