I concur in the affirmance of the judgment of the trial court for the damages and costs legally taxable, but I am contrained to dissent in so far as the judgment of this *Page 111 court affirms the taxation of the item of $111.20 as purported costs legitimately taxable.
The first paragraph of Rule 18 of this court provides:
"Either party may exhibit to the other or to his attorney, at any time before the trial, any paper material to the action and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission within four days after the request and the delivery to him of a copy thereof, if such copy be required, and if the party exhibiting the paper be afterwards required to prove its genuineness, and the same be finally proved or admitted on the trial, the expense of proving the same, including a reasonable counsel fee for the time and attention devoted thereto, to be ascertained and summarily taxed at the trial, shall be paid by the party refusing the admission, unless it shall appear to the satisfaction of the court that there were good reasons for the refusal, and an attachment or execution may be granted to enforce the payment of such expense."
By the second paragraph of the same rule it is further provided:
"Any party, by notice in writing, given not later than ten days before trial, may call on any other party to admit, for the purposes of the cause, matter or issue only, any specific fact or facts mentioned in such notice which can be fairly admitted without qualification or explanation as stated therein. In case of refusal or neglect to admit the same, * * * the expenses incurred in proving such fact or facts, including a reasonable counsel fee for the time and attention devoted thereto, must be ascertained at the trial and paid by the party so neglecting or refusing, whatever the result of the cause, matter or issue may be, unless at the trial or hearing the court or a judge certify that the refusal to admit was reasonable, or unless the court or a judge at any time shall order or direct otherwise," etc.
That the end sought to be attained by the provisions of the Civil Practice act under consideration was praiseworthy and in conformity with the modern trend is not *Page 112 debatable, and while it is desirable to cure the evil of unreasonable and unnecessary delay and to expedite litigation, yet the enactment of statutes and rules which are clearly violative of certain constitutional provisions, both State and Federal, in order to bring about the desired result, is not justified.
The majority opinion concedes that at common law costs were not recoverable. It follows accordingly that costs can be imposed and recovered only in cases where there is statutory authority therefor. (Patterson v. Northern Trust Co. 286 Ill. 564; Goudy v. Mayberry, 272 id. 54; Dixon v. People, 168 id. 179; Smith v. McLaughlin, 77 id. 596.) A party claiming costs must bring himself within the operation of some applicable statutory provision, since judicial power to adjudge costs against any one on merely equitable grounds is wanting. (7 Rawle C. L. 781; 15 Corpus Juris, 21; Patterson v. NorthernTrust Co. supra; Goudy v. Mayberry, supra; Wilson v. Clayburgh,215 Ill. 506; Rieker v. City of Danville, 204 id. 191.) The rule that costs cannot be recovered against an unsuccessful litigant unless they are authorized by law has consistently prevailed in this State. (Wilson v. Clayburgh, supra; Ricker v.City of Danville, supra; Dixon v. People, supra; Chase v.DeWolf, 69 Ill. 47.) Likewise, attorneys' fees cannot be charged in the bill of costs in the absence of statutory authority. (7 Rawle C. L. 792; Patterson v. Northern Trust Co.supra; Byers v. First Nat. Bank of Vincennes, 85 Ill. 423;Conwell v. McCowan, 53 id. 363; Adams v. Payson, 11 id. 26.) Moreover, statutes authorizing the taxation of costs are penal in their nature, must be strictly construed, and unless the authority to tax costs is clearly granted their allowance cannot be sustained. (Goudy v. Mayberry, supra; Gehrke v. Gehrke, 190 Ill. 166.) It follows that the determination of whether costs can be recovered in a particular action is primarily a legislative question. *Page 113
Recourse to the Civil Practice act discloses that the second paragraph of section 58 (Cahill's Stat. 1933, chap. 110, p. 2157; Smith's Stat. 1933, p. 2189;) declares: "Discovery of documents which are or have been in the possession of any other party to the action may be had, admissions as to any fact may be requested of any other party, and the deposition of any other party or of any person may be taken, at such times and under such terms and conditions as may be prescribed by rules." It will be observed that this section of the statute is silent with respect to the imposition of costs against litigants in any proceeding. The appellee asserts, however, that Rule 18 coincides with section 104 of the Civil Practice act. (Cahill's Stat. 1933, chap. 110, p. 2165; Smith's Stat. 1933, chap. 110, p. 2197.) This section is incorporated in article 9, entitled "Schedule of rules of court," and is denominated Rule 10. By section 3 of the act it is provided that the schedule of rules shall be deemed to be the rules of court, subject to suspension and amendment in any part thereof by the Supreme Court, as experience shall show to be expedient. The question of whether rules of practice prescribed by the legislature infringe upon the power of the judiciary is not presented for consideration. The narrow question to be decided is whether there is legislative authority for the allowance of costs in this and in analogous cases, and, in the alternative, whether the delegation of the legislative power to provide for the taxation of costs is constitutional. The power to make laws can not be delegated. (Kenyon v. Moore, 287 Ill. 233; Sheldon v. Hoyne, 261 id. 222.) Although the General Assembly cannot divest itself of its inherent function to determine what the law shall be, it may authorize others to do those things which it might properly but cannot understandingly or advantageously do itself. (Lydy v. City of Chicago, 356 Ill. 230; Sheldon v.Hoyne, supra; Block v. City of Chicago, 239 Ill. 251.) The grant of unlimited *Page 114 power, however, to be exercised without regulations, rules or conditions, is invalid. (Sheldon v. Hoyne, supra; People v.Vickroy, 266 Ill. 384; Moore v. Mayor of Danville, 232 id. 307.) "The true distinction," it has been said, "is between a delegation of power to make the laws, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made." 1 Lewis' Sutherland on Stat. Const. (2d ed.) p. 148.
The defendant also contends that section 58 of the Civil Practice act, if it be construed to delegate to this court the power to say what shall be costs, contravenes the fourteenth amendment to the Federal constitution and section 2 of article 2 and article 3 of the State constitution. The first section of the fourteenth amendment to the Federal constitution declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," and means subjection to equal laws, applying alike to all in the same situation. (Yick Wo v. Hopkins, 118 U.S. 356, 30 L. ed. 2201; Southern Railway Co. v. Greene, 216 id. 400,54 L. ed. 536.) Supplementing the equal protection provision of the fourteenth amendment, section 22 of article 4 of the constitution of this State prohibits the passage of a special law granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. The purpose of this provision is to prevent the enlargement of the rights of one or more persons and the impairment of or discrimination against the rights of others. To avoid falling within the constitutional inhibition of local or special legislation, the classification of subjects *Page 115 or objects must be based upon some reasonable and substantial difference in kind, situation or circumstance bearing a proper relation to the purposes to be attained by the statute.Marallis v. City of Chicago, 349 Ill. 422; People v. Kastings, 307 id. 92; Jones v. Chicago, Rock Island and Pacific RailwayCo. 231 id. 302; L'Hote v. Village of Milford, 212 id. 418.
The invalidity of a statute analogous to Rule 18 and of section 104 of the act is illustrated by Manowsky v. Stephan,233 Ill. 409. The statutory provision assailed in the case cited was a portion of the Mechanic's Lien law, which among other things, provided that in all cases where liens are enforced, the court should, in its discretion, order a reasonable attorney's fee taxed as a part of the costs in favor of the lien creditor. This court held that the provision transcended section 22 of article 4 of the constitution of this State. In arriving at its decision the court observed: "It is special legislation. It confers a right upon persons entitled to liens by virtue of the Mechanic's Lien law and confers that right upon no others. No reason exists for singling out those holding mechanics' liens and granting unto them this right while denying it to other lienholders, such as landlords, agistors and carriers. Legislation is not special merely because it applies only to the members of a particular class, but to make such a law valid there must be some actual, substantial difference between the individuals of that class and other persons in the State or community when considered with reference to the purposes of the legislation. The class must be composed of individuals possessing in common some disability, attribute or qualification, or in some condition marking them as proper objects in whom to vest the specific right granted unto them."
Section 1 of the Civil Practice act states that its provisions shall not apply to actions in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, *Page 116 habeas corpus, mandamus, ne exeat, quo warranto, replevin, or other actions in which the procedure is regulated by special statutes. The majority opinion holds that notwithstanding the express limitations and restrictions imposed by section 1 of the New Civil Practice act, to the effect that its provisions shall not apply to certain designated actions and classes of actions, yet that the provisions here under consideration do apply. In my judgment section 104 or Rule 10 of the Civil Practice act does not apply to those actions. The application of Rule 18 of this court to the defendant imposed on it a highly burdensome requirement because of the fact that it was a litigant in a proceeding governed, as to its procedure, by the Civil Practice act — a requirement which under the statute could not be laid on a party in one of the actions named in section 1. The resulting discrimination is essentially arbitrary. There is no reason for requiring an adverse party in a tort case to admit the authenticity of a particular document that would not apply with equal force to an adverse party in a garnishment action or any of the other actions specifically named in section 1; but even if we by judicial construction hold such section and rule are made applicable to the actions specifically named and other actions, and thereby the constitutionality of the section and rule saved, there remain further constitutional inhibitions of which the rule and section are violative.
The application of Rule 18 of this court to the defendant imposed on it an extremely onerous obligation because of the fact that it was a litigant that refused to admit the authenticity of certain documents. So far as the imposition of costs is concerned, the rule places litigants admitting the genuineness of documents and of facts into one class and those refusing to make this admission without reasonable grounds into a different class. The question of the propriety of the refusal, it is provided, shall be determined collaterally. The question to be decided is thus not whether *Page 117 the refusal was bona fide but whether it was unreasonable. The taxation of costs under Rule 18 is subject to the varying opinions of the judges throughout the State instead of being founded on a uniform law applicable alike to all under similar conditions. The resulting discrimination is essentially arbitrary. To the extent that the rule is an attempted exercise of legislative power by providing generally for the imposition of costs it is invalid. It follows that the costs, amounting to $111.20, were improperly taxed against the defendant.
In so far as the judgment of the circuit court of Peoria county taxed the sum of $111.20 as costs against the defendant such judgment should be reversed, with directions to strike out of the judgment for costs the allowance of such sum.