State v. Holm
| Decision Date | 17 June 1932 |
| Docket Number | No. 28679.,28679. |
| Citation | 186 Minn. 331,243 N.W. 133 |
| Parties | STATE ex rel. SMILEY v. HOLM, Secretary of State. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Gustavus Loevinger, Judge.
On application by the relator to the Clerk of the Supreme Court for taxation of costs and disbursements. From the Clerk's disallowance of costs and disbursements, the relator appeals.
Clerk's action affirmed.
For former opinions, see 184 Minn. 228, 238 N. W. 494; 184 Minn. 647, 238 N. W. 792.
George T. Simpson and Alfred Bowen, both of Minneapolis, for appellant.
Henry N. Benson, Atty. Gen., and Wm. H. Gurnee, Asst. Atty. Gen., for respondent.
Relator has appealed from the clerk's disallowance of costs and disbursements.
This action was prosecuted by plaintiff as a taxpayer to test the validity of H. F. No. 1456, see Laws 1931, p. 640, being in the form of a resolution assuming to reapportion the congressional districts of the state. The respondent, the secretary of state, presumably acting under the advice of the attorney general, was administering his office in obedience to the resolution which the governor had vetoed, but it was claimed that the veto was ineffectual. This court, in 184 Minn. 228, 238 N. W. 494, sustained the contention of the respondent and costs and disbursements were taxed against the relator in the sum of $69.25, which he paid. He later appealed from a final judgment which was affirmed by us in 184 Minn. 647, 238 N. W. 792. Upon review by the United States Supreme Court this judgment was reversed. 52 S. Ct. 397, 76 L. Ed. ___. After the case was returned to this court relator upon notice applied to the clerk for taxation of costs and disbursements aggregating $283.25, including said $69.25.
The clerk construed respondent's conduct as acts of a constitutional officer of the state in relation to the governmental affairs of the state and disallowed the application. Relator has appealed.
Obviously respondent had no individual or personal interest in the controversy, but was attempting to administer his official duties as secretary of state.
Relator taxed costs in the United States Supreme Court. But under a rule in that court costs and disbursements are taxed against a state just the same as any other litigant. Fairmont Creamery Co. v. State of Minnesota, 275 U. S. 70, 48 S. Ct. 97, 72 L. Ed. 168. Not so in this court.
When the state acts in its sovereign capacity, costs and disbursements cannot be taxed against it. Respondent here acted for the public. He represented the state. For all practical purposes he was the state. His error in judgment does not change the situation. It is only in exceptional cases that the state is liable for costs and disbursements. While acting in its sovereign character it is immune, but when it descends to the level of those with whom it associates and interests itself in property and proprietary rights as distinguished from governmental prerogatives, it subjects itself to the same liability for costs and disbursements as any litigant. The statute which allows costs and disbursements "in every action," G. S. 1923, 2 Mason, 1927, § 9473, is subject to this exception in favor of sovereignty.
In State v. Buckman, 95 Minn. 272, 104 N. W. 240, 289, the state was held liable for costs and disbursements because it there sought to recover damages for a trespass upon its lands. The action was purely to enforce the state's property rights. The action was prosecuted by the state in a proprietary capacity. State v. Horr, 165 Minn. 1, 205 N. W. 444.
In National Bond & Security Co. v. Hopkins, 96 Minn. 119, 104 N. W. 678, 816, this court classed the state as "only incidentally and nominally a party to the litigation."
In State v. Northwestern Elevator Co., 101 Minn. 192, 112 N. W. 68, 1142, where the state sought to enforce against the defendant the payment of delinquent personal property taxes, it was held that the state was not liable for costs and disbursements. It was there acting in its governmental capacity.
In Bartles Oil Co. v. Lynch, 109 Minn. 487, 124 N. W. 1, 994, the plaintiff procured a judgment restraining defendant as state oil inspector from wrongfully interfering with plaintiff's business. Defendant sought to avoid the allowance of costs and disbursements because he was an officer of the state. It was held that he could not escape costs and disbursements simply because he happened to be a state officer for as such officer he had no authority to do the threatened act.
In State ex rel. Simpson v. Village of Dover, 113 Minn. 452, 130 N. W. 74, 539, it was held that where quo warranto proceedings are instituted by the attorney general as the representative of the sovereignty of the state, to redress an alleged usurpation of office or corporate franchise, he is not liable, officially or otherwise, to defendant for costs and disbursements in case the proceedings fail.
In Schweigert v. Abbott, 122 Minn. 383, 142 N. W. 723, it was held that costs and disbursements were not taxable against the county superintendent of schools in litigation involving the validity of consolidated school proceedings because he was performing his official duties while acting for the state.
In State v. Fullerton, 124 Minn. 151, 144 N. W. 755, the state sought to recover moneys which it claimed to own. The state was held liable for costs and disbursements because, like in State v. Buckman, supra, it sought to enforce property rights, and governmental authority was not involved.
In State v. Chadwick, 133 Minn. 117, 157 N. W. 1076, 158 N. W. 637, L. R. A. 1916E, 1288, it was held that in proceedings for the collection of an...
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