I dissent. I do not think it necessary to declare section 1034 unconstitutional. Section 1033, in my opinion, was not intended to apply to the costs on appeal, and section 1034 is valid without aid from the preceding section. The fact that no notice is expressly required in section 1034 should not render the provision invalid. Nor should it be held that the provision that an execution for such costs may be issued without notice, invalidates the entire section unless the clause of section 1033 in regard to notice is read also into section 1034 It does not follow, from the lack of an express provision in the code for a previous or contemporaneous notice, that the entire proceeding would be unconstitutional. The court has inherent power to afford an ample remedy for any injustice *Page 38 that may be attempted by the filing of an excessive cost-bill. The entire argument of the prevailing opinion is based on a false premise which is not stated, — namely, that the superior court cannot entertain any motion, nor afford any relief in a case by any procedure, unless the motion or mode of relief is prescribed in the code or by some statute. This I hold to be a mistake. The superior court is a court of general jurisdiction, possessing all the usual and ordinary powers of the former courts of law and equity, and it may therefore, in any emergency not provided in the code, follow the practice of the common law and chancery courts in similar emergencies, and may adopt any procedure suitable to the exigencies of the case over which it has jurisdiction. (Code Civ. Proc., sec. 187.) The statute allows the prevailing party on appeal to file his cost-bill without notice. This, of necessity, cannot conclude the adverse party. An unsettled question, the correct amount of costs, remains for determination in such a case, and the court retains jurisdiction for that purpose. The losing party may at any reasonable time thereafter, either before or after the issuance of an execution, avail himself of this jurisdiction and move the court to retax the cost by striking out the items not allowable and reducing those which are excessive. And no doubt proceedings on execution could be stayed pending the determination of such motion, and the execution could be corrected after the motion was decided. The only restriction upon the right to this motion is that the party must not, after he has notice of the bill, unreasonably delay moving to retax, else he may be defeated by his laches. All these matters, in the absence of statutory provisions on the subject, are within the inherent power of the court. No statute is required to give the court the necessary power to protect the rights of parties to the litigation. In many of the states the costs are taxed by the clerk, without notice to either party, and no statutory procedure for retaxing is provided, and yet motions by either party to retax such costs are among the most frequent of proceedings in those courts, and the power to decide them has never been doubted. The time within which they must be made is a matter for adjustment in such states by judicial decision. The same power must exist in this *Page 39 state in cases for which the code makes no provision. The courts are as capable as the legislature of framing a rule and procedure that will be reasonable and just to all parties, and no evils are to be apprehended from the exercise by the courts of the power in this respect which the legislature has committed to them by section 187 aforesaid. In my opinion, the court below should not have granted the motion to strike out the costs, except upon a showing that they were not legally allowable. The appellant has followed the plain letter of the statute and the effect of the majority decision will be that she will be now entirely deprived of her costs, and this is done by means of a strained and unnatural construction adopted to avoid a difficulty which does not exist.