Trial fee ..................................... $ 6.00 Costs ......................................... 15.00 Transcript of testimony ....................... 178.00 Appellant's brief ............................. 21.00 _______ Total ................................. $220.00
Meanwhile the mandate on the decision on the merits had been forwarded to the Circuit Court November 5, 1926. On December 6th the state filed objections to the cost bill. The state has also filed a motion to strike out the motion to recall the mandate *Page 140 because the motion to recall was not served prior to filing.
The matter of the settlement of claims for costs and disbursements is a separate, though ancillary, proceeding. In a sense it is original in this court so far as the expenses of the litigation here are concerned. The principle is declared inLemmons v. Huber, 45 Or. 282 (77 P. 836); Perkins v.Perkins, 72 Or. 302 (143 P. 995); School District v.Alameda Construction Co., 87 Or. 132 (169 P. 507, 788);Pittock's Will, 102 Or. 196 (202 P. 216, 17 A.L.R. 218). Being thus substantially a separate and independent proceeding, it is not necessary to recall the mandate conveying to the Circuit Court our decision on the merits of the principal case. Since that was concluded, there has arisen separate litigation between the parties on the subject of costs and disbursements. This court has not yet lost its jurisdiction to adjudicate that matter. In that feature of the dispute, the statement of disbursements and the objection thereto constitute the pleadings upon which the court determines the issues thus raised: Or. L., § 569.
As stated, the filing of the cost bill is not affected by the mandate in the principal case. The bill was filed before the first day of the next succeeding term of this court and, having been served on the adverse party, it was in time: Or. L., § 569;Pittock's Will, supra.
By Chapter 88, Laws of 1921, is enacted that:
"In all criminal actions the county shall be liable for costs on appeal to the supreme court and with like effect as in the case of natural persons, upon reversal of the judgment of the lower court; and such costs shall be paid in the first instance by the county from which the appeal is taken."
Likewise Chapter 322, Laws of 1921, provides that: *Page 141
"When costs are allowed to the prevailing party on appeal to the supreme court the appearance fees, trial fees, attorney fees, as provided by law; the necessary expenses of transcript or abstract, as the law or rules require; the printing required by rule of the court, and the transcript of testimony or other proceedings, when necessarily forming part of the record on appeal, shall be taxed in the supreme court as costs of the appeal."
The fees of the official reporter for making transcripts of the testimony are fixed at fifteen cents per folio of one hundred words by Section 931, Oregon Laws.
"A disbursement which a party is entitled to recover must be taxed whether the same has been paid or not by such party." Or. L., § 569.
The state by its district attorney objects to the allowance of any of the items of the cost bill because it was not filed in this court before the mandate was sent down. This must be overruled because this proceeding is one separate and independent of the chief litigation. It is not affected by the mandate in the principal case.
Objection is made to the allowance of $6 trial fee on the ground that it was not paid by the defendant.
Section 1606, Or. L., reads thus:
"An appeal to the supreme court may be taken by the defendant from a judgment on a conviction in a circuit court, or from an order refusing to dismiss the indictments as provided for in section 1701; and upon an appeal, any actual decision of the court, in an intermediate order of proceeding forming a part of the judgment roll, as prescribed in section 1582, may be reviewed."
Section 1607 is here set down: *Page 142
"An appeal to the supreme court may be taken by the state from the judgment or order of the circuit court, in the following cases:
"1. Upon a judgment for the defendant on a demurrer to the indictment;
"2. Upon an order of the court arresting the judgment."
Section 1608 is as follows:
"An appeal may be taken as provided in the last two sections as a matter of right."
These sections are part of the Criminal Code which is said to be complete in itself: State v. Berger, 51 Or. 166 (94 P. 181); State v. McGrath, 35 Or. 109 (57 P. 321). When as a "matter of right," under Section 1608, Or. L., a defendant comes to the Supreme Court on appeal, no trial fee can be demanded of him. Otherwise his right would be impeded and restricted. He is not liable for a trial fee. Not being liable, he cannot recover it as a disbursement. Repeals by implication are not favored. For this reason we cannot hold that Chapter 322, Laws of 1921, applies in the respect here in question to criminal cases or that it affects Section 1608, Or. L. The practice has been not to demand a trial fee from an appealing defendant in a criminal case. Thus in a sense it has become a matter of contemporaneous construction of that statute extending over a long period of years.
The charge of $178 to cover the transcript of testimony is likewise challenged, the contention being that there were only 762 folios of the report which at fifteen cents per folio, amounts to only $114.30. This objection must be allowed.
The costs and disbursements properly taxable in favor of the defendant are as follows: *Page 143
Costs ................................... $ 15.00 Transcript of testimony ................. 114.30 Appellant's brief ....................... 21.00 _______ Total ............................. $150.30
It remains to determine who shall be charged with the payment of these items. The reasoning of the opinion in State v. Keelen, 103 Or. 172 (203 P. 306, 204 P. 164), on the question of objections to cost bills on appeal in criminal cases in this court leads to the conclusion that judgment should be rendered against the county of Klamath from which the appeal emanated. Chapter 88, Laws of 1921, fastens the liability upon that county and, although the state is the party plaintiff in the main case charging the defendant by its indictment with the commission of a crime, yet by the terms of this statute the expenses on appeal are chargeable to the county and not to the state. In a sense, therefore, the county, as one of the political subdivisions of the state, is a party to the supplemental litigation by operation of law and we but declare the legal conclusion to be derived from the statute and the facts concerning the costs and disbursements when we say that judgment should be entered against the county in this proceeding for those expenses in this court.
They will, therefore, be taxed as above stated and judgment given in this action against the county of Klamath in favor of the defendant for the amount of $150.30.
OBJECTIONS SUSTAINED IN PART.
McBRIDE, C.J., and RAND and COSHOW, JJ., concur. *Page 144