243 N.W. 133 | Minn. | 1932
This action was prosecuted by plaintiff as a taxpayer to test the validity of H. F. 1456 (see L. 1931, p. 640) being in the form of a *332
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
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. Minnesota,
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. *333 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,
In National B. S. Co. v. Hopkins,
In State v. N.W. Elev. Co.
In Bartles Oil Co. v. Lynch,
In State ex rel. Simpson v. Village of Dover,
In Schweigert v. Abbott,
In State v. Fullerton,
In State v. Chadwick,
In In re Application of Hunt,
In Builders L. M. L. Ins. Co. v. Compensation Ins. Board,
In McQueen v. Williams,
In State ex rel. Martin v. Burnquist,
The principle in these cases may be analogous to that in Roerig v. Houghton,
In Lipinski v. Gould,
In State ex rel. Koski v. Kylmanen,
For our purpose, the case of Hines v. Taft,
It may be that there are other pertinent cases which might have been cited herein.
Respondent in his official capacity was under duty to take a stand as to receiving filings and filing fees pursuant to or contrary to H. F. 1456. In making his decision he acted in good faith and proceeded purely in his governmental capacity. Under the authorities cited we hold that relator is not entitled to tax costs and disbursements herein. In as far as the amount of $69.25 is concerned, it would seem that this money ought in good conscience to be returned to relator, but we have no power to authorize it. Nor can respondent return it if he has paid it into the state treasury, as he presumably has. Whether this sum is ever returned to the relator must depend upon the action of the legislature.
The clerk's disallowance of costs and disbursements is affirmed. *336