People v. Latham

By the Court, McKinstry, J. : In November, 1874, plaintiffs brought an action under th ¡ Act of March 28th, 1874, “levying a tax for' State purposes [387]for the twenty-fourth and twenty-fifth fiscal years, and to pro- ‘ vide for the enforcement thereof.” The action was against defendant for the sum of five and seventy-five one-hundredths dollars, tajees due for the twenty-fifth fiscal year upon certain real estate. After due proceedings had, a decree was entered by the Court below for the sale of the property, to satisfy said sum of five and seventy-five one-hundredths dollars, with twenty-five per cent, added thereto, and interest and costs of suit. Copy of the decree, as an order of sale, was issued to the Sheriff, and was by him returned wholly unsatisfied. On the 7th of February, 1876, the Court caused a judgment to be docketed against defendant for the amounts due under said decree, and ordered execution to satisfy the same out of the general property of the defendant.

The defendant, on the 14th day of May, 1878, paid the tax, percentage, and interest due on the judgment, but did not pay the costs of the action. This appeal is from the order of the District Court denying plaintiff’s motion for an execution against the property of the defendant for the costs.

If the provisions of the Act .of March 28th, 1874, were applicable, there can be no doubt the plaintiffs were entitled to recover costs. We are to inquire, therefore, whether, under the Act of March 15th, 1876, “ to regulate proceedings for the collection of taxes, and to prevent oppressive costs,” the defendant was entitled to have the action “ dismissed ” on payment of the amount sued for without costs.

The final judgment in the Court below was entered and docketed before the passage of the last-named act.

It may be assumed that the Legislature, for the State, had power to remit the costs, leaving the attorneys for the People to appeal to the State for their compensation for services performed.

The question here relates to the construction of the language employed in the Statute of March 15th, 1876. The full text of that statute is as follows:

“ Section 1. In all cases when actions have been brought in the name of the State to recover taxes, under the provisions of an Act entitled ‘ An Act levying State taxes for the twenty-fourth [388]