¶1Upon the question whether the Code has repealed the provision of the Revised Statutes allowing double costs in certain cases, there have been numerous decisions in the different branches of the Supreme Court. These decisions have been on both sides, in number so nearly equal that it is impossible to find any decided preponderance of opinion. We are now called upon to settle this question. The way in which it is to be settled is of secondary importance.
¶2It is always with great diffidence that I undertake to solve any of the innumerable doubts and difficulties which arise in the construction and practical working of the system of practice denominated "the Code." In the present instance, I am extremely liable to be wrong; but the inclination of my mind is, that the provision of law allowing double costs to be recovered in certain cases is still in force. Section 303 of the Code is the one on which the opposing view is based. Its language is as follows: "All statutes establishing or regulating the costs and fees of attorneys, solicitors and counselors in civil actions, and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney, solicitor or counsel for his compensation, are repealed; and hereafter the manner of such compensation shall be left to the agreement, express or implied, of the parties. But there shall be allowed to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action; which allowances are in this act termed costs." This section, it will be observed, repeals all statutes "establishing or regulating the costs and fees of attorneys," c. If the provision of the Revised Statutes allowing double costs, is a statute of that *264 character, then most clearly it is repealed; but I do not think that it is. It declares (2 R.S., 617, § 24) that in certain actions, of which those against public officers constitute one class, "if judgment be rendered for the defendant, upon verdict, demurrer, c., such defendant shall recover the amount of his taxed costs, and one-half thereof in addition."
¶3This provision, it seems to me, does not, in any proper sense, establish or regulate costs. The defendant, being a public officer, "shall recover his taxed costs, and one-half" inaddition thereto. His right to costs is not determined by this section. When the right exists, it rests upon other provisions of law, under which he must be entitled to tax them before he can claim the addition. Nor is the amount regulated by this section. For the rates of taxation, reference must be had to another title of the Statutes, where those rates are prescribed for the different courts of the state. The right being determined and the amount regulated by other laws, this section merely increases that amount by the addition of one-half in favor of a particular class of litigants.
¶4Again, if the provision for double costs can be said in any just sense to establish or regulate costs and fees, it is not the costs and fees of "attorneys, solicitors and counsel" which are thus established or regulated. The section following the one which has been referred to (2 R.S., 617, § 25) declares that "when double or treble costs shall be awarded to any defendant, the same shall be deemed to belong to such defendant, and the counselors, attorneys and other officers who may have rendered any services in such action to such defendant, and the witnesses and jurors in such action, shall be entitled to receive and retain only the single costs allowed by law for their services, respectively." The repealing section of the Code only includes such statutes as establish or regulate the costs and fees of attorneys, solicitors and counselors. But the double costs, or additional one-half, belong exclusively to the public officer who is sued. The compensation of the attorney would seem to be in no *265 way affected by the provision. It is true that all costs are now, under the Code, declared to be an indemnity to the party for his expenses in the action, but this indemnity is due alike to all parties, as single costs were under the Revised Statutes, and I am satisfied, on the whole, that it takes the place of the single costs only which were allowed by the preceding law. Let the order appealed from be affirmed.
¶5JOHNSON, Ch. J., expressed no opinion; HARRIS and PRATT, Js., dissented.
¶6Order affirmed.