State ex rel. Warren County v. Stone

| Miss. | Oct 15, 1891

Campbell, C. J.,

delivered the opinion of the court.

The question is, whether, in a proceeding by mandamus against a state officer in which judgment goes against him, he is personally liable for costs ? He is certainly liable for costs, as any other litigant' is. His position is that of an official trustee, and, like other trustees, is to be adjudged to pay costs, and has a claim on the state for re-imbursement of his proper expenditure in this behalf, just as trustees have a claim on the trust-fund they represent for re-imbursement of all proper costs of defending their trust. This matter is not provided for by statute, as it well might be. It cannot be doubted that in all cases where litigation results from the action of its officer in an effort to subserve its interest, the state will save him harmless from costs adjudged against him. Otherwise, he might be deterred from proper litigation in the interest of the state. It would seem to be proper and wise to vest power in the courts (at least in the court of last resort) to render judgment for costs in all such cases against the state, if the court.giving judgment shall certify that the course of the officer in instituting, prosecuting or defending the proceeding was justifiable. In this way justice may be done to the officer, and the state saved from costs improperly incurred. The costs will be taxed against the person litigating, because no other judgment can be rendered in the absence of a law providing for it.