State ex rel. Cunningham v. Lazarus

• Decision Date: 01 December 1888
• Citation: 40 La.Ann. 856,5 So. 289
• Court: Louisiana Supreme Court
• Parties: STATE EX REL. M. J. CUNNINGHAM, ATTORNEY GENERAL,[*] v. H. L. LAZARUS, JUDGE

5 So. 289

40 La.Ann. 856

STATE EX REL. M. J. CUNNINGHAM, ATTORNEY GENERAL,^[*] v. H. L. LAZARUS, JUDGE

Supreme Court of Louisiana

December 1, 1888

W. S Benedict, for Plaintiff.

M. J Cunningham, Attorney General for the State.

OPINION

WATKINS J.

This proceeding by rule, to have the fees of Arthur McGuirk, for services rendered in the course of the trial of the aforesaid cause, as an expert stenographer and type-writer, taxed as costs, is one taken in the original suit, and the decree we are invited to render is an interlocutory one, and will, when rendered, form an addendum to the original judgment therein.Iron Works vs. Reuss,40 La.Ann. 112;3 So 505, Rev. St. § 750.By the terms of the original decree, the charges made by the relator were sustained, the respondent removed from office, and condemned to pay all the costs of the proceedings.State vs. Lazarus,39 La.Ann. 162, 1 So. 361.Of course, that judgment is a finality, with respect to the respondent, except as to the items and amount of the stenographer's bill.But quite a different question is presented for solution in respect to the State, because the State was personated by the attorney general as the relator.It is claimed by counsel for the plaintiff in rule that, notwithstanding judgment went in favor of the relator for "the costs of the proceedings," yet the State occupies the position of plaintiff in an ordinary civil action, and hence she is primarily bound to officers of courts for their costs.As it is of great importance, we will dispose of this issue first, it having been submitted as an exception of no cause of action.

Resistance to the demands of the plaintiff in rule is made by the attorney general on the authority of State vs. Succession of Taylor33 La.Ann. 1270;State vs. Taylor,34 La.Ann. 978.After what appears to us to have been a careful examination of the question of the State's liability for payment of costs in her own courts, we said in the former case: "The present suit is one in which the State is a party in her own name, and to enforce her own rights, and not those of any person or individual.In her own courts, constituted by herself, whose officers are appointed by herself, and whose costs and fees are paid by herself out of the fund created for that purpose, it would be an extraordinary proceeding to require her to furnish security for the payment of costs."Page 1273.In the latter we quoted the former with approval, and said: "It is well settled in American jurisprudence that the sovereign never pays costs.This doctrine, which is an essential element of our system of government, was recently recognized by us in the case of State vs. Succession of Taylor, 33 La.Ann. 1271."

But counsel for plaintiff argues that, in the case of State vs. Succession of Taylor, the question was not the actual liability of the State for costs, but her obligations vel non to furnish security for costs antecedent to judgment; that, as in that case, there appeared to have been no final judgment rendered for or against the State, the question here was not before us; and that State vs. Taylor was a criminal case, and the cost, in such cases, are governed by the provisions of Rev. St. §§ 1042, 1076.As this is a question of vital importance to the plaintiff in rule, and the amount claimed is large, -- being in excess of $ 3,000, -- it may be well to look into the authorities on the subject, and apply the law to the facts of this case.

In the first place, as plaintiff's counsel seems to rely on it, we will examine the federal jurisprudence on the question.

In The Antelope, 12 Wheat. 549, the Supreme Court say: "It is a general rule that no court can make a direct judgment or decree against the United States for costs and expenses, in a suit to which the United States is party, either on behalf of any suitor, or any officer of the government.As to the officers of the government, the law expressly provides a different mode.* * * Their accounts must be certified to and paid out of the treasury, and cannot lawfully constitute any part of the judgment or decree in the cause."

As announcing a different principle, counsel cite us to what is said in U.S. vs. Ringgold,8 Pet. 163, and which, after quoting ipsissimis verbis the rule as formulated in the opinion supra, is in these words: "But it by no means follows that they[the United States] are not liable for their own costs.No direct suit can be maintained against the United States.But when an action is brought by the United States to recover money in the hands of a party who has a legal claim against them, it would be a very rigid principle to deny to him the right of setting up such a claim in a court of justice, and turn him around to an application to congress."

There is nothing, to our thinking, that is in the least contradictory or conflicting in those opinions.They are to the effect that no direct judgment can be rendered by any court against the United States for costs.They do not declare that they are not liable for them in proper cases.Now, what the court said, in the case last cited, with regard to the "legal claim" of the defendant in a civil action brought by the Uuited States, was to merely sanction his right to urge it in that suit as a reconventional demand.It did not say that he might take a judgment against the United States for cost of such demand.All those questions were evidently governed by the act of Congress of the 8th of May, 1792, and subsequent acts in relation to judicial costs and other expenses, accounts of which were to be paid from the national treasury upon proper certification and approval of some competent judge.

Those decisions are in accord with our own jurisprudence.It is a familiar principle "that the sovereign cannot be sued in his own courts without his consent."State vs Burke,34 La.Ann. 548, and authorities collated therein.And it is perfectly true that, as said...