ON MOTIONS TO TAX COSTS, ASSESS DAMAGES AND FOR ALIAS WRIT. (Submitted January 24, 1933. Decided February 8, 1933.) Pursuant to the opinion promulgated December 13, 1932, the court on that day issued its writ of mandate directed to the respondent State Board of Equalization, commanding action in accordance with the opinion.
On December 19 the board made its return to the writ wherein it set forth, in short, that it had obeyed the mandate in all particulars.
On that day, December 19, the respondent Anaconda Copper Mining Company filed a memorandum of its costs and disbursements and a petition in support thereof. The items claimed are as follows:
Printing briefs for appearance in supreme court .......... $ 257.00 Paid to stenographer for copies of transcript of hearing on petition for alternative writ of mandate in the supreme court .................................. 63.70 Attorneys' fees .......................................... 1,000.00
Thereafter the relators filed a motion to strike the memorandum from the files, at the same time filing an answer to the petition.
On the twelfth day of July, 1932, following the rendition of the original opinion, the relators filed a memorandum of their costs and disbursements, together with a petition praying for the allowance of the same, in which they claimed $294.95; and on the twenty-sixth day of January, 1933, they filed an affidavit for the purpose of showing their damages, in the nature of expenses incurred by them in the matter, other than attorneys' fees. Included in the affidavit were the items which go to make up the sum claimed in the memorandum filed July 12, 1932; the other items, except two which will be referred to later, consist of expenses incurred by the *Page 62 attorneys in preparing for and presenting the cause upon the trial.
1. Clearly the Anaconda Copper Mining Company is not entitled[20, 21] to tax as costs the item of $63.70, being the amount paid to a stenographer for copies of a transcript of the proceedings on the hearing in this court. (State ex rel. King v. Second Judicial District Court, 25 Mont. 1, 63 P. 402;Montana Ore Purchasing Co. v. Boston Montana C.C. S.M.Co., 27 Mont. 288, 70 P. 1114; Montana Ore Purchasing Co. v.Boston Montana C.C. S.M. Co., 33 Mont. 400, 84 P. 706.) Nor is it entitled to recover any sum for attorneys' fees. The statutes do not make any provision for such, and no authority has been cited in support of the claim made.
As the complaint was framed, the Anaconda Copper Mining Company was a proper, though not a necessary, respondent. Upon the issues as made up, and upon the admitted facts, the respondent company was found to be not guilty of any wrong, and, the writ being directed only to the respondent board, the action as to the respondent company was dismissed. Is it entitled to recover its costs "for printing briefs for appearance in the supreme court"? We determine that it is not. While it is true that it did not come into the action voluntarily, and as the issues were resolved a judgment was not rendered against it, it cannot be said to be a prevailing party. The relief asked by it was that the writ be not issued. In this it did not prevail, and the writ was issued, as a result of which the State Board of Equalization shows that the respondent company was obliged to pay to the state over $20,000 on account of additional taxes levied against it.
The various items claimed by the Anaconda Copper Mining Company as costs and disbursements are disallowed.
2. The relators are entitled to the costs claimed by them in[22, 23] their memorandum of July 12, and also to the additional sum of $32.10 due to the Tribune Printing Supply Company for a balance due on printing relators' briefs. *Page 63 They are no more entitled to the item, reimbursement for a transcript of the arguments made at the hearing in this court, than is the Anaconda Copper Mining Company.
The other items claimed by relators by way of damages, which consist of expenses incurred by their counsel, will not be allowed separately (and we reserve judgment upon the propriety of some of them), but we take them into consideration in fixing the attorneys' fees now to be allowed.
Relators are entitled to damages in the way of expenses incurred for the services of lawyers employed by them to bring and carry on this proceeding. (Sec. 9858, Rev. Codes 1921, as amended by section 1, Chapter 5, Laws of 1925; State ex rel.Shea v. Cocking, 66 Mont. 169, 28 A.L.R. 772, 213 P. 594;State ex rel. Golden Valley County v. District Court,75 Mont. 122, 242 P. 421.) This is provided for in the opinion, the matter being postponed until the return of the writ.
It was agreed by counsel for relators that as this court by reason of the varied experiences of its members is familiar with the value of attorneys' fees, we may, without the necessity of taking evidence, fix and allow such attorneys' fees for relators as may be deemed just and reasonable. This course is agreeable to recognized practice in this state. (Bohan v. Harris, 71 Mont. 495,230 P. 586.) We now fix and allow the sum of $5,000 as a reasonable attorneys' fee to be allowed to the relators as damages in this proceeding.
Relators' costs in this proceeding, while taxed against the respondent board as a matter of form, and the damages awarded relators, including the attorneys' fee fixed, are awarded to them and shall be recovered by the relators from the state of Montana, which was represented in this proceeding by the State Board of Equalization; and it is hereby adjudged that the amount of costs, to-wit, $327.05 costs, and $5,000 damages (attorneys' fee), are a proper claim against the state of Montana and are to be paid as other claims against the state are paid, pursuant to the provisions of section *Page 64 9858, Revised Codes of 1921, as amended by section 1, Chapter 5, Laws of 1925.
3. In the objections by relators to the return made by the[24] respondent State Board of Equalization it is alleged that the return is insufficient in law on the face thereof, in that "it makes no return in fact and only of legal conclusions by the board," and is uncertain. We shall not stop to consider these objections, as we do not deem them meritorious.
The third, fourth, fifth, sixth and seventh objections are based upon allegations that the return is false. In the fourth objection the relators have pleaded particulars in which they say the board erred in fixing deductions from the New York City prices of 3 cents an ounce for silver, 2 1/2 cents an ounce for copper, 1 1/2 cents an ounce for lead, 1 cent an ounce for zinc, and in allowing other deductions. They pray that an alias peremptory writ of mandate issue to the State Board of Equalization commanding it to strike "all items of differentials heretofore employed by them, all items of expense allowed or included therein in violation of said law," and so forth.
The "objections" are verified after the fashion of a pleading. But it must be remembered that this cause was argued and submitted as upon a motion for judgment on the pleadings — presenting to this court questions of law only, it being agreed by counsel for the relators and respondents that it should be deemed that no disputed issues of fact were involved. The three questions submitted for decision are set forth specifically in the opinion.
It should go without saying that if the respondent board has not complied with the provisions of the writ, this court has the power, and it is its duty, to compel it to do so. (38 C.J. 939;Palmer v. Jones, 49 Iowa, 405.)
The objections present issues of fact which may not be tried in this proceeding. They call for findings not within the issues framed by the pleadings, not within the theory upon which the case was presented, and clearly not within the questions submitted *Page 65 for decision. This court will not now try a question which was not litigated when the cause was on trial. (State ex rel.Rowling v. District Court, 41 Mont. 532, 110 P. 86.)
If the pleadings presented the issue, what factor or factors may be taken into consideration in fixing differentials? — which they do not — that issue could not be decided without taking testimony, in all probability a considerable volume of testimony; and that should not be done without reframing the pleadings in order to keep the inquiry within due bounds. If the court were to appoint a referee, he would have nothing to serve as a guide to the scope of the inquiry; the result would end in confusion and perhaps in a failure to investigate questions necessary to a complete and final judicial determination.
The only questions which have been presented and resolved in this proceeding are legal ones, except that it was admitted that the board had failed and refused to assess arsenious oxide; and upon the admitted facts, the law being interpreted correctly, it followed that the board had erred in fixing the differential with respect to zinc. Otherwise, questions of fact were not presented nor determined. If relators desire to pursue the inquiry which they have sought to present in their objections to the board's return, they must do so in some other proceeding before an appropriate tribunal. The objections are overruled.
ASSOCIATE JUSTICES MATTHEWS, STEWART and ANDERSON concur.