This Court has power, in a case of, original jurisdiction, to
award costs against either of the parties.
The statutes of the United States upon the subject of costs,
examined.
Moreover, this Court has equity jurisdiction in certain cases,
under the Constitution of the United States, and in those cases, it
is guided by the rules and principles of the Court of Chancery in
England, as they existed when our constitution was formed. That
court had power to award costs, and this Court must have the same
power.
The bill of costs in this case was taxed by the clerk under the
order of this Court. Either party had leave to file exceptions, but
both parties, by a written agreement, waived all exceptions, and
the court confirmed the report. After this, it is too late to
object.
A motion to file a bill of review upon the subject of costs, and
also for a retaxation of them is therefore, overruled.
This was a case of original jurisdiction upon the equity side of
this Court, and was a sequel to the preceding case between the same
parties.
Mr. Charles W. Russell as the solicitor for the Bridge Company,
filed a petition praying leave to file a bill of review of an order
of this Court, made at the December term, 1851, respecting the
costs, in the original case between the parties. The petition set
forth that this Court had no power to condemn either party to a
suit originally brought in this Court to pay the costs of the suit,
or if it had the power, then the amount of costs must be regulated
by some previous act of Congress or rule of this Court. It also set
forth that the report of the clerk, which was confirmed by an
order, was liable to objection, and prayed that the report might be
reopened.
MR. JUSTICE NELSON delivered the opinion of the Court.
This is an application made on the part of the defendants, for
leave to file a bill of review, so far as respects the orders and
decrees for costs heretofore rendered in the above case against
them.
The court have already determined that the decree rendered for
costs against the defendants was unaffected by the act of Congress
passed August 31, 1852, and with which determination it is entirely
satisfied.
It is suggested, however, on the part of the applicant that
there is no act of Congress expressly conferring power upon this
Court in the case of original jurisdiction to award costs against
either of the parties. This may be true, but it is equally true in
respect to the circuit courts of the United States, and yet no one
has doubted the power in those courts since their first
organization,
Page 59 U. S. 461
1 Blatchford 652, and the grounds upon which that power rests
apply with equal force to the Supreme Court in the cases mentioned.
In the distribution of original jurisdiction between the Supreme
and circuit courts, there is nothing peculiar in the nature or
character of that conferred upon the former, to distinguish it
specially from the latter. Indeed, a large portion of this
jurisdiction is concurrent with that of the circuit courts. It is
exclusive only in a few cases having regard to the sovereign
character of the party to the suit or in cases where the interests
of our foreign relations may be concerned and principles of
international law involved.
In the nature of the jurisdiction, therefore, or in the
character of the suits in this Court of original jurisdiction, we
perceive nothing that should lead us to distinguish, on the
question of costs, between this Court and the circuit courts. And,
as we have already said, the grounds for the exercise of the power
-- namely, the repeated recognition by acts of Congress of the
right of the prevailing party to costs -- is as applicable to the
one court as the other.
It would be an endless task to refer to the various acts of
Congress passed from time to time recognizing the right of the
party to costs in proceedings in the courts of the United States,
and of course including this Court. It will be sufficient to say
that they will be found in the laws of Congress, running through
its entire legislation on the subject of judicial proceedings, and
regulation of the power and authority of the federal courts and its
officers. Among the first acts is that of May 9, 1792,
"An act for regulating processes in the courts of the United
States, and providing compensations for the officers of the said
courts and for jurors and witnesses."
1 Stat. 275. The compensation here provided for, on behalf of
officers and persons concerned in the administration of justice,
not payable out of the Treasury of the United States, was
recoverable as costs of the suit. § 6, 278.
The Act of July 22, 1813, 2 Stat. 19, "An act concerning suits
and costs in courts of the United States," provided, § 1, that
where several actions against persons who might be joined in one
action touching a demand in any court of the United States, if
judgment be given for the plaintiff, such party shall not recover
the costs of more than one action &c. And the 3d section
provided, that where causes of like nature &c., shall be
pending before a court of the United States, it is made the duty of
the court to make rules or orders to avoid unnecessary costs, and
consolidate the causes. It is also provided that if any attorney or
person admitted to conduct causes in a court of the United States
shall appear to have multiplied proceedings
Page 59 U. S. 462
in any cause, so as to increase costs vexatiously, such person
may be required to satisfy any excess of costs so incurred. But we
shall not pursue this inquiry. We could multiply instances of
similar recognition of the right of the party to costs, and power
of the court to award them, to almost any extent. The instances we
have referred to are but samples, and, we think, sufficient for the
purpose designed.
But, independent of this, the constitution provides that the
judicial power of the United States shall extend to all cases in
equity between a state and the citizens of another state, and that
in cases in which a state shall be a party, this Court shall have
original jurisdiction. There is thus conferred by the Constitution
on this Court original jurisdiction over "cases in equity" between
a state and citizens of another state; and this is the jurisdiction
we have exercised in the matter now before us.
Original jurisdiction in equity, in a particular class of cases,
conferred by the Constitution on this Court, has been interpreted
to impose the duty to adjudicate according to such rules and
principles as governed the action of the Court of Chancery in
England, which administered equity at the time of the emigration of
our ancestors, and down to the period when our Constitution was
formed. And when the Constitution of the United States conferred
that jurisdiction on this Court, it cannot be construed to exclude
the power possessed and constantly exercised by every court of
equity then known, to use its discretion to award or refuse costs,
as its judgment of the right of the case, in that particular, might
require. The Court entertains no doubt of its power to award costs,
and deny the application to file a bill of review.
Then as to the bill of costs taxed by the clerk. It is
sufficient to say that the bill, as we understand it, consists
entirely of the expenses attending the taking of testimony in the
case, and of the surveys, examinations, and reports of the
engineer, preparatory to the final hearing of the case, and which
services were performed under the special order and direction of
the Court, together with the fees for the services of the officers
of the Court. And, further, that the bill of costs has been
referred to the clerk of the court, with directions to examine
witnesses, and resort to such other proofs for the purpose of
ascertaining the proper compensation to be allowed the
commissioners, and to the engineers and clerks employed by him, and
also to ascertain the whole amount of expenses incurred by said
commissioner, and the amount advanced by the respective parties,
and report on the same; and that either party have leave to except
to the report, in writing, as to any of the items or sums of money
allowed by the clerk.
Page 59 U. S. 463
This report was duly made in conformity with the order, and the
counsel for the respective parties filed at the time a written
declaration waiving all exceptions to any part of said account or
vouchers, and stating that they do not mean to except to said
report, nor desire any further time to examine or except to it,
whereupon the report was confirmed by this Court.
It can hardly be expected, after this deliberate proceeding by
the Court to ascertain the costs and expenses attending the trial
and hearing of the case, and the opportunity of the counsel for the
respective parties at the time, to scrutinize the several items of
the account, their attendance before the master, and, after the
proper scrutiny, entering into and filing an express written waiver
of exceptions to the taxation and solemn recognition of its justice
and propriety, that the Court will open the question for a
reexamination, or can desire any further inquiry into or review of
the matter thus disposed of. There must be an end of litigation. We
are not only satisfied that the party applicant for a review of the
question has already had full opportunity to present his objections
to the bill of costs, and, indeed, has already availed himself of
the benefit of it, but are also satisfied with the order and
judgment of the Court heretofore given in the premises.
The motion for bill of review, and also for retaxation of
costs, is denied.