Costs — G.L. 7435 — Term Fees, Travel Fees, and Attorney's Fees Unallowable in Criminal Case.
1. Costs, whether in civil or criminal cases, are taxable only by force of statutes, except as they were allowed by the common law as altered by statutes of England in force October 1, 1760.
2. Provisions of G.L. 7435, which are only statutory provisions regarding taxation of term fees, travel fees, or attorney's fees, held to refer to civil cases only, hence such costs are not recoverable in criminal cases.
POWERS, C.J.
The appellant was convicted on a criminal charge in the municipal court of Bennington, and the conviction was affirmed at the last term of this Court. State v. Pierce, 103 Vt. 383, 154 A. 675. He now appeals from a taxation of costs made by our clerk at Bennington. The disputed items in the taxation are six in number, aggregating $18. Five of these are for "term fee and travel," allowed at $3 per term; the other is for "attorney fee" at the May Term, also allowed at $3.
Subject to the qualification pointed out by Mr. Justice Taylor in Comstock's Admr. v. Jacob, 89 Vt. 510, 96 A. 4, which does not affect the question here presented, costs are taxable only by force of the statutes. In re Jacobs, 87 Vt. 454, 89 A. 634. It is so in criminal cases. 15 C.J. 317; State v. Guyer, 91 Vt. 290, 295, 100 A. 113; United States v. Gaines (U.S.), 25 L. ed. 733.
The only statutory provisions regarding the taxation of term fees, travel fees, or attorney fees, are found in G.L. 7435. But this section obviously refers to civil cases only. It specifies the items that are to be taxed in favor of the "recovering party." It cannot be that the Legislature intended by the use of this term to include the State in criminal cases. In such cases, the State does not "recover." If successful, it prevails. The items specified are, therefore, unwarranted and are expunged from the taxation.