
    The City Council of Charleston vs. M. Luhrs and J. J. Bredenberg.
    
      City Court of Charleston — Fees.
    Fees in the City Court of Charleston are regulated by the Act of 1827, and not by the Fee Bill of 1791.
    The City Court of Charleston is not a Magistrate’s Court.
    IN THE CITY COURT OF CHARLESTON,‘FEBRUARY TERM, 1858.
    The report of his Honor, the Becorder, is as follows:
    “These were actions in the summary process jurisdiction of the Court, to recover the penalty of twenty dollars in each case, for violations of the city ordinances against negroes loitering. An application is now made in behalf of defendants to reform the taxation of costs by the clerk.
    “ It was urged, first, that costs in this Court should be taxed according to the Fee Bill of 1827. 6 Stat. 888.
    “ Secondly, that these being cases within the summary process jurisdiction, and below fifty dollars, the taxation should be according to the A. A., 1809, (5 Stat. 596,) for only half costs.
    
      “ And thirdly, that the Court of Appeals having, in the City Council vs. Stelges, 10 Bich. 488, decided that the Becorder had authority to try and decide without a jury all cases within a magistrate’s jurisdiction, only magistrate’s costs should be taxed.
    “ With regard to the first point. The City Court was established by an Act of the Legislature, passed 19th December, 1801. 7 Stat. 300. By the 4th section the jurisdiction was limited to all actions for the recovery of any debt or sum of money arising on contract, express or implied, and for offences against the by-laws of the corporation, provided no verdict or judgment recovered in the said court shall exceed one hundred dollars. By section 11th, the fees of all officers of the said Court shall be in all respects the same as were then allowable by law in the summary j urisdiction of the Court of Common Pleas. At this time the Eee Bill of 1791, (5 Stat. 154,) was in force; and had there been no other legislation on the subject, no question could be made. But by A. A. 1818, (7 Stat. 319,) the Legislature increased the jurisdiction of the City Court, and provided in the second section of that Act that the charges and fees of the several officers of the said Inferior City Court shall be the same as in the Court of Sessions and Common Pleas, in like cases. In 1827, (6 Stat. 333,) the Legislature abolished the old Eee Bill of 1791, and established new rates of fees for the officers of the Superior Courts of Law and Equity. In this Act no reference is made to the City Court. ■ And the question is, whether the fees of the City Court are affected by the subsequent alteration of the fees of tbe Superior Courts. I am of the opinion that they are not. The second section of the Act of 1818, increasing the jurisdiction of the City Court, had reference to the Eee Bill then of force, which was the Old Eee Bill of 1791; there is nothing prospective in its language, and the interpretation and practice of the Court from that time, a period of forty years, has always been that the fees of the City Court were unaffected by the Act of 1827.
    “ The next point is, that only half costs should be allowed, inasmuch as that by the A. A. 1809, (5 Stat. 596,) of force when the A. A. 1818 was passed, pnly one-half costs were allowed in .all suits “ upon contract, be the same liquidated or on open account,” within the summary process jurisdiction, when the demand was not for more than fifty dollars. > The question here arises, whether an action under a penal statute is a suit upon a contract liquidated, or on an open account. I am of the opinion that it is not. It is true that a penal action is quasi ex contractu, but it is not a liquidated demand, •which seems to be conceded to mean only a sum ascertained and fixed by the writing of the defendant, with or without seal. Willcie vs. Walton, 2 Sp. 473; Growther vs. Sawyer and Steel, 2 Sp. 573. Nor is it an open account. It has been held, in the case of Anderson vs. Fowler, 1 Hill, 226, that a debt created by a penal statute is not such a contract that an action would lie on it in a Magistrate’s Court; although, by the A. A., 1824, (6 Stat. 239,) the jurisdiction of justices of the peace in matters of contract to the amount of twenty dollars is exclusive.
    “ The third and last ground taken is, that only the costs of a Magistrate’s Court should be allowed. The error of this position arises from supposing, that because the Recorder has the authority to decide without a jury all cases under the city ordinances within the penalty of twenty dollars, the costs of the Court shall be the same as the costs of the Magistrates’ Courts. The right to costs arises from the statutes allowing them. If a plaintiff bring a demand into a Court having j urisdiction of it, he is entitled to all the costs fixed by the law creating the Court. The Act of 1801 granted the exclusive jurisdiction in. these cases, and the same Act fixed the costs. Where the Acts regulating the costs of the Court do not reduce them according to the amount recovered, there is no other power which can do so. The Courts of Law, until the Act of 1824, had concurrent jurisdiction with the magistrates in all matters of contract between twelve dollars and twenty-four cents, and twenty dollars; and a decree in summary process was always regarded as equivalent to a verdict, sufficing, if above four dollars, to give the plaintiff a right to his costs. Vaughan vs. Oacle, 2 Rich. 54.
    “ Where an action was brought in the Common Pleas for an amount beyond the magistrate’s jurisdiction, and there was a decree for an amount below it, it seems to have been settled that there was no rule which authorized the Court to award magistrate’s costs. Nance vs. Palmer, 2 Bail. 88. I am. therefore of the opinion, that in all penal actions within the summary process jurisdiction, brought in this Court, the costs should be taxed according to the Fee Bill of 1791. It must have been the intention of the Legislature that costs throughout the State should be uniform. But it has not been so provided. It is a matter of regret that the scale of fees in matters of so small amount should be so high. In all taxations the Fee Bill should be rigidly adhered to; and I trust that those having the matter in charge will take the necessary steps for a proper amendment of the law.”
    The defendants appealed on the grounds :
    1. That his Honor erred in deciding that costs in these cases should be taxed according to the Fee Bill of 1791; and
    2. Because the taxation, under any circumstances, was excessive.
    
      Thomas Y. Simons, for appellants, submitted:
    1. That the object of the A. A. 1818, was to establish a uniform system of fees between the City Court and the Court of Common Pleas, and was prospective in its operation.
    2. That under no circumstances could more than one-half costs be allowed, as this was a case within the summary process jurisdiction, and “in like cases,” in the Common Pleas at the time of the passage of the A. A. 1818, only half costs were there allowed.
    He cited Act of 1801 (7 Stat. 300, 303); Act of 1809 (5 Stat. 596); Act of 1818 (7 Stat. 178); Act of 1827 (6 Stat. 333); Lwar. on Stat., 11 Law Lib. 20, 41, 58, 60; Corporation of Columbia vs. Barrison, 2 Mill, 213 ; Corporation of Columbia v. Bunt, 5 Hick. 553.
    Pope, contra.
   The opinion of the Court was delivered by

Whitner, J.

This was an application to the Recorder to reform the taxation of costs by the Clerk of the City Court. The actions we are informed by the report, were in the Summary Process Jurisdiction of the Court, to recover the penalty of twenty dollars for violations of a city ordinance, and costs had been taxed according to the Fee Bill of 1791.

What might be the just construction of the legislation on the subject of fees allowed officers of the City Court if restricted to the Act of Assembly of 1801, and the Act of Assembly of 1827 we are not called upon to determine. The phraseology of the former Act is peculiar in providing, that the fees shall be in all respects the same as are now allowable by law in the summary jurisdiction of the Court of Common Pleas.” But the Act of Assembly of 1818, (7 Stat. 319,) Sect. 2, directs “ that the charges and fees of the several officers of said Inferior City Court shall be the same as in the Court of Sessions and Common Pleas in like cases.” This provision is less equivocal and restrictive, and adopts a rule for compensation intended to be uniform as between the same officers in the Courts of Sessions and Common Pleas in the State and the City Court in all Wee cases. This is simple, just and reasonable, in allowing the same rate of compensation, for the same service, performed by the same officer, in the City Court as in the Superior Court. From that time forth upon a just interpretation of this Act, in the opinion of a majority of this Court, the fees of these officers in the Inferior Court were to be ascertained and regulated by the fees allowed like officers in the Superior Court for like services from time to time. Hence, when by the Act of 1827, (6 Stat. 332,) the fees of officers of the Courts of Law were regulated, though the same officers are not referred to by name in the Inferior Court, the Act of 1818, having in general terms declared that their fees should be the same, brought the latter class of officers within its operation,

Such a construction is consistent with the phraseology of the Act, as it is surely with the general scheme and spirit of the law, otherwise we should have the strange anomaly of officers in the city itself, bearing the same name, incurring like responsibility and charged with the same service, receiving therefor a different rate of compensation in Wee cases.

This view dispenses with the necessity of considering the question raised in the argument, whether such suits as the present fall within the provisions of the Act of 1809. The fees allowed by the Act of 1827 to such officers in cases where amount sued for is above or below the sum of'fifty dollars is well settled, and the taxation in the present actions should conform.

We find no warrant in the law for the idea that this Court has been converted into a Magistrate’s Court, or that the fees allowed officers in the City Court are in any way governed by fees appertaining to the magistrate’s jurisdicion.

There is no analogy which leads to any solution of the question as to fees allowed attorneys, clerks and sheriffs in the City Court.

The cases are remanded to the City Court that an. order may be made by the Recorder, reforming the taxation of costs in accordance with the Fee Bill of 1827.

O’Neall, Wardlaw, Withers and Glover, JJ., concurred.

Motion granted.  