The Court of Appeals, in affirming the final judgment or order of this Court, in the proceeding against the defendant as for a contempt, has awarded to the relators the costs of the appeal; and this judgment, as the proceedings have been remitted to this court, it has become our duty to execute, and consequently to interpret. The question which we are called upon to determine is, whether the costs which the defendant is required to pay are those prescribed by the Code, or those which are taxable under the Eevised Statutes.
Section 307 of the Code, subd. 7, declares that the costs to be allowed on an appeal to the Court of Appeals, shall be $25 before argument, and $50 for argument; and the clerk, in adjusting the costs, has followed this direction. Hr. Justice Bosworth has affirmed the decision of the clerk, but it has been earnestly contended that the decision is erroneous, and inconsistent not only with the general design, but with the express provisions of the Code.
I shall proceed to state in a condensed form the argument that , was relied on to convince us of the error which we are urged to correct.
The jurisdiction which the Court of Appeals has exercised in this case, it is admitted, is derived from the Code, but we" are assured that it is a mistake to suppose that the Code regulates the costs on every appeal which it sanctions. The jurisdiction is founded on subd. 3, in § 11, which gives an appeal “ from a final order affecting a substantial right made in a special proceedingbut the provision in § 307, which defines
This conclusion, however, so far from deeming it necessary, we do not hesitate to reject. It is true, that title 13 of chap. 8 (2 R. S. 532)—which treats of “ proceedings as for contempt to enforce civil remedies ”—is unrepealed in all its provisions ; but these provisions relate wholly to proceedings in the court in which the contempt is sought to be punished, and contain not a single word in relation to the mode in which the final judgment or order of the court is to be reviewed by a higher tribunal. They have, therefore, no bearing whatever on the question we are now considering; since neither their construction, nor their application, can be varied in the slightest degree by holding that an appeal from such an order is subject, in all respects, to the provisions of the Code. The whole argument, therefore, on the part of the defendant, rests upon the truth of the allegation that the provision in the second part of the Code, in relation to appeals in their just construction, must be limited to appeals in civil actions, since, that the
The second part of the Code is entitled “ Of Civil Actions ” and that this title was meant to refer only to those actions which the Code defines and regulates, we readily admit, nor is it necessary to deny that, under this general title, appeals in such actions are properly comprehended.
The title of a law, however, it not unfrequently happens, is much narrower than its actual contents, and in such cases it has certainly never been supposed that an express provision must be altered or expunged, in order that the contents may be made to correspond with the title. The history of legislation shows, that of all the arguments which are used to fix the construction of a statute, that derived from its title is the weakest and most deceptive. In rare cases, the title has been invoked to aid, but in none has it been permitted to control the interpretation; on the contrary, when a plain discrepancy exists, it is not merely a reasonable, but a necessary inference that the title is defective or erroneous.
It happens in the present case, that the Code itself furnishes the clearest evidence that the title of “ civil actions,” upon which the learned counsel for the defendant laid the stress of his argument, is essentially defective, and so this court upon full consideration has determined.
The object of section 8, in the preliminary title to the Code, is to announce that division of the entire act which its framers had deemed it proper to adopt; and it'declares that this division is into two parts, the first of which relates to “ courts of justice and their jurisdiction,” and the second not only to civil actions commenced after the 1st day of July, 1848 (that is, commenced under the Code), but also, with the exception of the last four titles, to appeals to the Court of Appeals, and other courts—an addition which, if appeals are properly comprehended under the general head of civil actions, was plainly unnecessary, unless appeals in other cases than in actions under the Code were meant to be embraced. That they were meant to be embraced, and that the latter words of the section were introduced in order to embrace them, this
The action in Kanouse v. Martin was commenced previous to the adoption of the Code, but the appeal to the* Court of Appeals from the judgment of this court was subsequent.
The appeal had been dismissed with costs to the respondent, and the question to be determined was exactly the same as in the case now before us, namely, by what law the costs of the appeal were to be regulated. It was contended on behalf of the appellant that the provisions in the Code relative to costs on an appeal, were applicable only to appeals in civil actions commenced after the Code; but the learned judge who heard the motion decided that the general words in section eight extended to all appeals subsequent to the Code, without reference to the time of the commencement of the suit in which the appeal was taken, and that to hold otherwise would be a plain violation of the intent of the statute. It is true that this decision, in its form, was that of a single judge, but it was made with a full concurrence of two of his associates, and, as I personally know, was the result of their joint deliberation. It has, therefore, all the authority of a decision at general term.
It may be said, however, that the decision in Kanouse v. Martin, so far as its authority is binding, only proves that costs on an appeal must be adjusted under the Code, when the appeal is from a judgment in a civil action, and does not prove that the same costs must be allowed when the appeal, as in the case before us, is from a final order in a special proceeding. Hence, to meet the objection, a further examination of the provisions of the Code seems to be necessary.
I proceed, then, to the title of the Code, which treats especially and exclusively of appeals. This is title 11, of the second part of the Code. It is headed, “ Of Appeals in Civil Actions,” and if the provisions that follow correspond with this title, the position for which the counsel has contended, notwithstanding our decision in Kanouse v. Martin, is established, since we
And the question at once suggests itself, for what purpose was this section inserted? Not assuredly for the purpose of defining the jurisdiction of the Court of Appeals, since this jurisdiction had already been given and defined by the section which is referred to; nor, if it is susceptible of any other construction, are we at liberty to regard it as an idle repetition of a previous enactment. We think that the plain and sole object of the section is to indicate the cases by a reference, without enumeration, to which the subsequent provisions of the chapter and all general provisions throughout the Code in relation to appeals to the Court of Appeals, shall be construed to apply, and that the construction and effect of every section containing such a provision are consequently the same as if in each an appeal from a final order in a special proceeding were separately mentioned. Thus the section which immediately follows prescribes the written undertaking which must be executed on the part of the appellant to fender an appeal effectual, and sections 327 and 328, in the preceding chapter, the notice which is necessary to be served and the duties of the clerk in transmitting the papers to the appellate court; and we apprehend it cannot be doubted that all these provisions apply just as plainly and certainly to an appeal from an order in a special proceeding, as to an appeal from a judgment in a civil action. At any rate no such doubts were entertained by the learned
Our conclusion is, that the appeals to the Court of Appeals, which are referred to in the title “ Of Costs,” are the same that the chapter “ Of Appeals,” has declared may be taken; and consequently, that to every appeal so taken, the provisions that govern the allowance of costs must be construed to apply. The work of the framers of the Code would be manifestly incomplete had they omitted á provision for costs on any appeal which they meant to sanction and regulate. Legislation thus bungling and defective it would be unjust to impute to them. Whatever may be the terms in which other persons may choose to describe their labors, in my deliberate judgment they have accomplished, and generally speaking, ably and successfully accomplished, a most difficult, as well as important and honorable, task.
The monument that has been raised, as a work of science and art, may doubtless be improved. Its defects may be supplied, and its proportions corrected or enlarged. • But the foundations are solid and deeply laid, and the structure will stand. Manet et moméhit.
There is an additional, and, I think, conclusive reason, for holding that the relators are entitled to the costs which they claim. Unless those allowed by the Code may be given, there are none to which they can be entitled; and the judgment which we are required to execute will be inoperative and void, from the absence of any rule or standard by which the costs that are awarded may be estimated. The Code has, in terms, abolished writs of error; and although not in terms, yet by necessary implication, it has abolished appeals as formerly understood and prosecuted.
It has abolished them by the substitution of proceedings so widely different that the costs which are taxable under the re-wised statutes can no longer be applied to them. It was said by the court in the case of Kanouse v. Martin, that if the writ of error is taken away the fees for prosecuting it must fall to the ground. If the proceeding which is the principal, is abo
There remains only a single observation. The Code has declared (§ 491) that its provisions shall not affect appeals from Surrogates’ Courts. The exception of these appeals was plainly unnecessary, had it not been seen that the general words of the Code would otherwise be construed to embrace them; nor would the exception have been confined to these appeals, had it been thought that any other were proper to be included. The solitary exception proves the rule—proves that in all the cases not excepted, the provisions of the Code in relation to appeals were meant to be understood in the full extent of the terms in which they are expressed. It is thus that we interpret them. 'The decision of Mr. Justice Bosworth is therefore affirmed with costs.