State Ex Rel. Blount v. Simmons

EaiiíClotii, O. J. : This action was authorized by the Acts 1893, Oh. 287, Sec. 4. It has been held that the defendant is not liable for the cost consequent upon the failure of the action. Blount v. Simmons, 118 N. C., 9. His Honor below entered judgment against the State for the costs of the action, and the State has appealed. Is the State liable for the costs of its own action unsuccessfully prosecuted ? It is urged that no citizen can maintain an action again-t the State, and that is true. Battle v. Thompson, 65 N. C., 406. But this is'not au action against the State ; it is an action by the State, and the State has declared by its own legislation that in such cases it shall be liable for costs to the same extent as private parties. Code, Sec. 536. The Attorney General insists that the State cannot be sued in any case, by reason of its sovereign character, and because the Constitution, Art. IV., Sec. 9, provides a remedy. That article is a relaxation of the rule that the State cannot be sued, and enables the citizen to obtain the opinion of the Supreme Court as a recommendation to the legislature *52 and no more. The application to the Court cannot result in a judgment for the claim of the citizen. The costs in this case are not strictly a claim against the State, as contemplated by Article IY., Sec. 9, but only an incident of an action by the State for which its agent has assumed that it will be liable to the same extent as private parties. We find nothing in the Constitution depriving the Legislature of power to enact, Code, Sec. 536, and we do not think it will impair the sovereign character of the State to meet its just liabilities, whether in the form of costs or otherwise. How the judgment will be satisfied is a question not now before us. Affirmed.