Buckingham Transportation Co. v. Black Hills Transportation Co.

285 N.W. 300, 66 S.D. 433

• Court: South Dakota Supreme Court
• Decided: April 14, 1939
• Docket: File No. 8181
• Status: Published

Opinion

allowances are termed costs.” That this is not an action (cf. § 2091, Rev. Code of 1919) and is not a special proceeding in certiorari, mandamus or prohibition, is evident. Neither the industry of counsel nor the diligence of the court have brought to light any special statute expressly clothing us with power to award costs herein.

It is said that the authority to enter judgment for costs should be implied from the language of Chapter 204, Taws of 1937, supra, dealing with a 'bond for costs. In that chapter, in providing for an appeal to the circuit court from the Railroad Commission, provision is made for a bond “conditioned for the payment of the costs of appeal if said appeal should withdrawn or dismissed, and for the refunding to any person, firm, corporation or association of any moneys collected in violation of the provisions of the final order or determination appealed from.” In dealing with the appeal from the circuit court to this 'court, the chapter says, “No additional bond shall be required on such appeal.”

The logic of implying a broad general power to impose costs and fix the items thereof in connection with a determination on the merits, because the Legislature made provision for a bond to answer for costs “if said appeal should be withdrawn or dismissed,” might well be questioned. However, we rest our conclusion on broader grounds. In our judgment, the authority to tax costs should never be implied, but should • rest upon a clear statutory grant of power. Redfield v. Davis, supra; 15 C. J. 23.

Our order will be that our judgment heretofore entered in the above entitled cause be modified so as to omit the award of costs contained therein.

All the Judges concur.