Moore v. Westervelt.

as the enumeration was evidently meant to be complete, we have construed it as defining and limiting our powers, and consequently, as repealing all prior statutes by which a different or larger jurisdiction was given.

The title "of costs" in the code means costs in civil suits, and there is no exception, either in the heading of the title, or in its provisions, of particular suits or particular cases. It corresponds, in its general design, with title 1, of chapter X part 3d of the revised statutes, which is headed "of the cases in which costs may be recovered;" and we know no reason why its provisions must not receive the same interpretation; that is, as intended to embrace all the cases in which costs may be recovered or allowed. Mr. Justice Woodruff, in a MS. opinion, with a copy of which we have been furnished, by a careful analysis of the two statutes, title one in the revised statutes, and ten in the code, has clearly shown that the provisions in the latter are throughout substituted for those of the former, and we agree with him that while every other section in title one is plainly superseded, it would be unreasonable to believe that §§ 24 and 25 were meant to be continued in force. We agree with him that the substitution was meant to be and is complete.

An objection, however, to this construction not hitherto noticed, must now be stated. It has much apparent force, yet when examined supplies new reasons in support of the conclusions that we adopt. The statutory provisions in relation to double costs, it is truly said, are founded upon reasons of public policy, which we ought not to believe, unless upon the strongest evidence, that the legislature meant to disregard. The object of these provisions is to encourage public officers in the faithful discharge of their duties, by imposing a penalty upon those, who without just cause, prosecute them for their official acts. Its design is to protect the officer against groundless and vexatious suits, and this protection, unless the language of the code is plain and imperative, ought not to be withdrawn. To all this we entirely assent, and the reply is, that this reasonable protection is not withdrawn, but in all the cases in which it ought to be given, is more effectually secured by the provisions of the code than by those of the statute. It is secured by the duty which is

Moore v. Westervelt.

now imposed upon the judges, of making an extraordinary allowance to the party who prevails in the suit "in every case in which the prosecution or defence has been unreasonably or unfairly conducted." (Code, § 308.) It is not a narrow and literal construction that we give to these words. We hold that they apply to every suit which is groundless in its origin and vexatious in its purpose; since every suit which is unreasonable and unfair in its commencement, must be so in every subsequent step of its progress, and unless it is at once abandoned, it is "a prosecution unreasonably and unfairly conducted."

It is true, that under the code it is only in special cases that an additional allowance can be made to a public officer, who is a defendant in the suit, whereas, under the statute, he is entitled to double costs, in every case in which the plaintiff fails to succeed, to whatever cause his ill success may be owing, and however reasonable the grounds upon which the suit was commenced. But this distinction, so far from being an objection, is an additional and very strong reason for holding that the provisions of the code have superseded those of the statute. If more limited in their application, they are more equitable when applied. They give to the officer all the protection that he can justly claim, and they impose no penalty, when no wrong has been committed and no punishment is due.

Upon the other hand, if we have rightly interpreted the provisions in § 308 of the code, as to the extent of their application, let us consider what, in some cases, must be the necessary consequence of holding that they are not substituted for those of the statute. Where a suit against a public officer, in the opinion of the judge by whom it is tried, is unreasonable or unfair in its origin or conduct, he is bound to make to the defendant the additional allowance which the code has authorised. If he is satisfied that the wrong which was meant to be restrained has been committed, it is his duty to impose the penalty, and to this penalty, if the statutory provisions are still in force, that of "double costs" must be added. Nor is this all; the additional allowance is plainly a part of the "sum of charges for costs," which are to be adjusted by the clerk, under § 311 of the code. The entire allowance is, therefore, not merely to be added

Moore v. Westervelt.

to double costs, but, in the sense of the statute, is itself to be doubled. It is manifest that such an aggravation of the penalty that double costs were meant to provide, would in all cases be unjust, and in many oppressive; and we therefore find it impossible to believe that it was contemplated by the framers of the code, or by the legislature. Yet if this consequence was not intended, double costs were meant to be abolished, and we rest with satisfaction in the conclusion that they are abolished.

The order allowing them to the plaintiffs is therefore reversed, but without costs.

INDEX.

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