Campbell v. Sanders

42 S.C. 522

• Court: Supreme Court of South Carolina
• Decided: December 8, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Chief Justice MoIver.

The eleven cases above stated all depending upon the same facts, were heard and will be considered together. The facts are so fully and clearly stated in the decree of his honor, Judge Izlar, which should be incorporated in the report of this case, that it is unnecessary to repeat them here. It is sufficient to say that these were claims presented by the several appellants to Master Miles for their respective portions of the fund appropriated by the United States government for the purpose of refunding the direct taxes imposed and collected by that government, which fund had been placed in the hands of the State government, and its distribution provided for by the act of 1891 (20 Stat., 1067), entitled “An act to provide a mode of distribution of the money collected as direct tax from the citizens of this State by the United States, and turned over in trust to the State of South Carolina.”

It appears that the respondents herein filed their petition before Master Miles, praying to be allowed to intervene and set up their claims against the several claimants (appellants herein) for portions of the several amounts found to be due such claimants respectively. The master declined to consider such petition, and from his refusal to do so the respondents herein appealed to the Court of Common Pleas, where their several appeals were dismissed. Thereupon the appellants herein applied to and obtained from the clerk of the Court of Common Pleas a taxation of their costs incurred under said appeals. To such taxation of costs the respondents herein excepted, and the cases went before his honor, Judge Izlar, upon such exceptions, who rendered judgment sustaining the exceptions, and adj udging that the appellants herein were not entitled to costs. From this judgment these appeals have been taken upon the several grounds set out in the record, which need not be repeated here, as the sole question is whether the appellants are entitled to costs in a proceeding of this kind.

1 It is well settled that the right to costs is of purely statutory origin, and hence when any one sets up a claim for costs, he must point out the statute conferring the right to costs in the case in which such right is asserted. State ex rel. Bull v. County Treasurer, 10 S. C., 40; Scott v. Alexander, 27 S. C., 15. We do not think that there is any statute conferring the right to costs in a proceeding of this kind. It is very clear that the act of 1891, above referred to, does not confer the right to costs. On the contrary, while it does provide for the compensation of the commissioner sent to Washington, and for the compensation of the masters, as well as for the payment of certain other expenses incurred in carrying out the provisions of the act, it is entirely silent as to any costs to be allowed the parties, or any officials other than those above named.

2 It is contended, however, that the right to costs is secured by the provisions of section 331 of the Code of Procedure. That section reads as follows: “When the decision of a court of inferior jurisdiction in a special proceeding, including appeals from the probate courts, shall be brought before the Circuit Court for review, such proceeding shall, for all purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into court, and costs thereon shall be awarded and collected as provided by law.” It will be observed that this section applies only to cases, “when the decision of a court of inferior jurisdiction, in a special proceeding, including appeals from the probate courts, shall be brought before the Circuit Court for review.” Hence, in order to make this section applicable, it is necessary to ascertain whether Master Miles had been constituted a court of inferior jurisdiction by the act of 1891. When the State, under the provisions of the act of Congress, received the money appropriated to refund the direct taxes collected during the war, it thereby became a trustee for those entitled to share in that fund, as is expressly recognized in the title of the act of 1891, and, but for its sovereignty, would have been liable to an action to account for such fund.

Inasmuch, however, as the State cannot be sued in its own courts except by its own consent, the act of 1891 was passed, in pursuance of section 4 of article XIY. of the Constitution, whereby the General Assembly is authorized to “direct by law in what manner claims against the State may be established and adjusted,” simply for the purpose of enabling those interested in the direct tax fund to have their claims against the State established and adjusted. We do not find anything in the act of 1891 which indicates an intention on the part of the legislature to constitute either of the masters therein referred to a court, in the sense of that term as used in the Constitution. On the contrary, the provision in section 5 of that act, authorizing an appeal to the Court of Common Pleas, followed immediately by the words, “whose judgment shall be final,” clearly indicates that the legislature did not intend to create a court; for if it had, then either party would have had the constitutional right to invoke the judgment of the Supreme Court, and the judgment of the Court of Common Pleas could not properly have been declared to be “final." Again, if the legislature had intended to create a court, it could only do so under the provisions contained in section 1 of article IV. of the Constitution, authorizing the General Assembly to “establish such municipal and other inferior courts as may be deemed necessary;” and if they acted under that authority, then the jurisdiction of the court thus established would have been necessarily limited to claims not exceeding one hundred dollars. See City Council v. Ashley Phosphate Co., 33 S. C., 25.

But, as we have said, we do not think that the legislature intended to create a court at all, but simply a temporary commission or tribunal, for a specific, temporary purpose, to ascertain certain claims of a certain character against the State, just as was done in ease of the tribunal presided over by Hon. James C. Coit, which this court held, in Ex parte Childs, 12 S. C., 111, was not a court. Indeed, that case was stronger than this, for there the tribunal was called in the act establishing it “a court,” while in the act. of 1891 we find nothing of the kind, If, then, Master Miles was not constituted a court by the act of 1891, then section 331 of the Code does not apply, and there is no statute allowing costs in a proceeding of this kind.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.