Opinion
No. 75-492.
Submitted on briefs June 2, 1977. —
Decided July 1, 1977.
APPEAL from a judgment of the circuit court for Milwaukee county: JOHN E. MCCORMICK, Circuit Judge. Reversed.
For the appellant the cause was submitted on the brief of Robert P. Russell, corporation counsel, and Gerald G. Pagel, assistant corporation counsel, Milwaukee county.
For the respondent the cause was submitted on the brief of Warren A. Kenney, Wisconsin Indian Legal Services, of Madison.
This is an appeal of a judgment awarding costs to Peter R. Korne, the successful petitioner in a habeas corpus proceeding. The judgment was entered on November 13, 1975.
Korne was arrested on November 6, 1974, and on November 8, 1974, was charged with a violation of sec. 940.01, Stats., first-degree. murder. Bail was set at $15,000, cash or surety, and Korne was held in the Milwaukee County jail.
A preliminary examination was scheduled for November 18, 1974. At the preliminary the state requested an adjournment because Dr. Joseph Kuzuma, the Assistant Milwaukee County Medical Examiner, was out of town and unable to testify. Defense counsel opposed the adjournment, arguing that no subpoena had been served on Dr. Kuzuma and that no cause was shown for his absence. The adjournment was granted.
On November 22, 1974, a writ of habeas corpus was brought against Milwaukee County Sheriff Michael S. Wolke. The petition alleged that the adjournment was in violation of sec. 970.03(2), Stats. The court granted the writ and released Korne on a $15,000 signature bond pending further proceedings.
"970.03 Preliminary examination. . . . (2) The preliminary examination shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500. On stipulation of the parties or on motion and for cause, the court may extend such time."
While the record does not so indicate, Korne states that he was subsequently recharged and later cleared of any involvement in the matter. He states the charge was dismissed by the district attorney prior to trial.
Korne brought a motion for the costs of the habeas proceeding on November 29, 1974. The court, in a memorandum decision filed September 23, 1975, held that taxing costs in a habeas corpus proceeding was permissible and entered judgment awarding Korne $93.60.
Sheriff Wolke appeals from this judgment.
The issue before the court is whether the trial court erred in awarding costs.
"This court has consistently held that at common law costs were unknown, and that in this state costs are regulated exclusively by statute as a matter of legislative discretion." Milwaukee v. Leschke, 57 Wis.2d 159, 161, 203 N.W.2d 669 (1973). In the absence of a statute authorizing costs, they are not recoverable. City of Beloit v. Town of Beloit, 47 Wis.2d 377, 392, 177 N.W.2d 361 (1970). This is particularly true in the case of the state or another governmental body, or an officer of a governmental body. See, e.g., Klingseisen v. State Highway Comm., 22 Wis.2d 364, 370, 126 N.W.2d 40 (1964); Milwaukee v. Leschke, supra at 161.
Ch. 292, Stats., governs habeas corpus proceedings. Sec. 292.37 states the amount of damages for which one shall be liable for failure to deliver an order. Sec. 292.17 states that a sheriff may be jailed for failure to make a return to the writ of habeas corpus. Sec. 292.11 states when the charges of bringing the petitioner before the court are to be paid by the petitioner. The chapter is silent concerning taxing the costs of bringing the action. This is strong evidence that the legislature did not intend that costs be awarded in a habeas corpus proceeding.
A conclusion that costs were not intended in a habeas corpus proceeding is supported by ch. 293, Stats., concerning mandamus and prohibition. Sec. 293.04 states that if judgment is for the plaintiff in mandamus or prohibition he shall recover costs. The legislature specifically provided for costs for a prevailing plaintiff in mandamus and prohibition proceedings, but did not so provide in habeas corpus proceedings. This is further evidence that the legislature did not intend costs to be taxed in habeas corpus proceedings.
In 20 Am. Jur.2d, Costs, sec. 35, p. 29, it is stated:
" Public officers. A public officer who is a party to litigation as a representative of the interests of the public is not personally liable for costs of the suit where he has acted in good faith and the litigation was not made necessary by reason of any negligence or misconduct on his part. When, however, a public official has been guilty of malfeasance, nonfeasance, or negligence in fulfilling the duties of office imposed on him by law, he is liable for the costs of an action or proceeding brought to remedy the wrong to the same extent that any other individual wrongdoer would be liable for costs."
In this case Sheriff Wolke at all times faithfully executed his duties. He acted in good faith. This proceeding was not based upon negligence or misconduct of the sheriff. He had no discretion concerning the respondent's incarceration. He simply obeyed a court order regular upon its face. Costs are penal in nature. As noted above, in Wisconsin the failure of a sheriff to comply with the orders' of a court in a habeas proceeding is punishable in another manner. It may be inferred that the legislature did not specifically provide for costs in a habeas proceeding because it provided alternative penalties for a sheriff who acts improperly concerning the detention of an individual.
20 Am. Jur.2d, Costs, sec. 6, pp. 8-9.
Habeas corpus is a civil action. State ex rel. Reynolds v. Flynn, 180 Wis. 556, 563, 193 N.W. 651 (1923); State ex rel. Durner v. Huegin, 110 Wis. 189, 223, 85 N.W. 1046 (1901). One arrested for a crime brings the writ asserting the right to personal liberty against those who are holding him as a criminal. Thus, while it is a civil action, it is usually brought about by a criminal charge and subsequent imprisonment. In the absence of specific statutory authority, costs are not taxed in criminal proceedings. Faust v. State, 45 Wis. 273 (1878). Because of the peculiar nature of habeas corpus, if the legislature intended costs to be taxable in habeas corpus it would have so provided.
Kurtz v. Moffitt, 115 U.S. 487, 494 (1885).
The respondent argues that secs. 814.23 and 814.036, Stats. are grounds for taxing costs. Neither of these statutes deals specifically with habeas corpus. The question, then, is whether the general language of these statutes is sufficient to rebut the strong evidence that the legislature did not intend costs to be taxed in habeas corpus proceedings. We do not believe so.
" Actions by or against county. In all actions by or against a county, and in actions or proceedings by or against county officers in their name of office, costs shall be awarded to the prevailing party as in actions between individuals."
" Omnibus costs provision. If a situation arises in which the allowance of costs is not covered by ss. 814.01 to 814.035, the allowance shall be in the discretion of the court."
Reliance on either of these statutes as the reason for allowing taxation of costs in a habeas corpus proceeding would mean, either as a matter of course or in the discretion of the trial court, that when a petitioner brought a writ of habeas corpus and was unsuccessful, costs would be taxed against him. This inequitable result is further evidence that the legislature did not intend the taxation of costs in a habeas corpus proceeding.
By the Court. — Judgment reversed.