Board of Health v. Maginnis Cotton Mills

46 La. Ann. 806

• Court: Supreme Court of Louisiana
• Decided: April 15, 1894
• Docket: No. 11,381
• Status: Published

Opinions

The opinion of the court was delivered by

Watkins, J.

On motion of the counsel for the Board of Health as appellant, a rule was granted upon the clerk of this court to show cause why its appeal should not be filed without making the cash deposit required of other parties litigant, because the Board of Health,.acting in the interest of the State and its people, is entitled to litigate in the courts of this State without the payment of costs.

In answer to the rule the clerk avers that (1) there is no law of this State which exempts the plaintiff in rule from making the deposit required by the rules of this court; (2) nor is there any law of this State which relieves the plaintiff in rule from the payment of clerk’s costs incurred in this court.

Under the law the clerk of this court is entitled to demand and receive fees which are fixed. R. S., Sec. 756.

Under the rules of this court the party applying for the filing of a transcript in a cause in this court must first render to the clerk his bond and security, or make a deposit of twenty dollars. Rule 2. The contention of plaintiff in rule, that the Board of Health being a part of the machinery of the State government, can not, for that reason, be required to pay costs or furnish security for costs, is applicable with equal force to every municipal and parochial corporation in the State — they constituting a part of the machinery of the State government also.

The law exempts the State from furnishing security for costs, but the exemption must be strictly construed — the language of the statute being that “ no court of this State, nor officer thereof, shall demand of the State, or of the Attorney General, any security for costs, or advance costs,” etc. Sec. 1, Act 65 of 1884.

Counsel for appellant has referred us to the following cases as supporting this theory of plaintiff in rule, viz.: State vs. Taylor, 34 An. 978; Succession of Townsend, 40 An. 66; State vs. Taylor, 33 An. 1270.

In the first ease cited the court said: “ By special legislation all costs incurred in criminal prosecutions are to be paid by the respective parishes in which the offence charged may have been committed. R. S., See. 1042. .

“ Hence, it would be a more than idle ceremony to exact of the State security for costs which are not chargeable to her. 1 It is well settled in American jurisprudence that the sovereign never pays costs.’ This doctrine, which is essential to our system of government, was recently recognized by us in the case of the State vs. Succession of Taylor. 33 An. 1271.”

The same principle was recognized in Succession of Townsend, 40 An. 66, and followed in State ex rel. Attorney General vs. Lazarus, 40 An. 856.

It is the duty of the plaintiff in rule to make out a clear ease of ■exemption from the rule of law applicable to other litigants, but this it has not done, and its rule must be discharged.

It is therefore ordered, adjudged and decreed that the plaintiff’s rule be discharged at its costs.