Morgan v. Pickard

| Tenn. | Dec 15, 1887

LurtoN, J.

State not taxable with these costs.

First — The recovery of costs is given by statute, and unless there be some law authorizing it, the Court cannot give costs against any one. The State cannot be taxed with costs of a criminal proceeding unless there be express statutory authority. Neither implication or conjecture will justify it. Prince v. State, 7 Hum., 137; Tucker v. State, 2 Head, 556; State v. Womack, 1 Lea, 559.

Where a prosecution for a felony has been dismissed by a Justice, and he. taxes ' the prosecutor with the costs, as authorized by Sections 6457 and 6458, Code (M. & V.), there is no authority afterward, upon return of nulla bona, to tax the State’s costs to the State. Costs of criminal prosecutions which, may be taxed to the State are enumerated in Section 6465, Code (M. & V.), and there is no authority under this section or any other to tax the State with costs where the costs have been taxed to the prosecutor. The case of the State v. Womack, 1 Lea, 559, is an authority in point.

' Second■ — The judgment against the State in this case was unauthorized by Sections 6442 and 6443, Code (M. & Y.). The judgment referred to in the latter section is the original judgment taxing costs rendered against the State under the first four subsections of Section 6465, Code (M. & V.). State v. Nolan, 8 Lea, 663.

The State may not be sued, and no judgment can be rendered against the State for criminal costs save where expressly authorized by statute. The judgment must be in pursuance of statute. This judgment on its face shows that it was rendered by virtue of no statute, and it is void. State v. Nolan, 8 Lea, 663.

The case of the State v. Puckett, 7 Lea, 709, is not in point. The County Judge was by statute required to draw his warrant for costs when a bill of costs against the county, properly examined and certified by the Judge and District Attorney, is presented. If he deem the taxation erroneous, he may delay his warrant, and move a retaxation; but he has no' power to revise a certified bill of costs. Code, §§ 582, 585, and 586. The Comptroller, on the other hand, is required to examine and adjust, and to draw his warrant upon such adjusted claim. He cannot lawfully pay a void judgment. The Comptroller must draw his warrant whenever the claim is a lawful one and authorized by statute. If he refuse, mandamus is the remedy. 12 Heis., 613; 8 Lea, 663.

The demurrer to the alternative writ of mandamus was properly sustained. Judgment affirmed,with costs. .