Appeal from clerk's taxation of costs against the state and in favor of defendants. The basis of the objection is that the state was acting in its sovereign capacity and that no costs or disbursements should be taxed against the sovereign in the proceedings involved, and for the further reason that such taxation is not expressly authorized by statute.
The attorney general, in the name of the state, commenced the action under M.S.A. 48.525 to have the deposits declared escheated and to enforce the rights of the state. As stated in our opinion in the case, the procedural requisites under the statute in connection *Page 426 with the commencement of the action were fulfilled, and defendants answered denying that they had abandoned the funds left on deposit in the State Bank of Long Lake, Long Lake, Minnesota. We held that there had been no abandonment of the funds, and the order of the district court was reversed with directions to find that there was no abandonment.
The principal question involved here in connection with the taxation of costs is whether the state was acting in its sovereign capacity or whether it was involved in an ordinary action for the recovery of money or property.
In State v. Buckman, 95 Minn. 272, 104 N.W. 240, 289, it was held that the state was liable for costs and disbursements in a civil action brought by it to recover damages for trespass alleged to have been committed upon its lands by defendant. A demurrer to the complaint was interposed, which was sustained by the trial court and affirmed on appeal. Defendant then gave notice of taxation of costs and disbursements, to which the state objected on the ground that no costs or disbursements except clerk's fees were taxable against the state. The clerk's taxation of costs in favor of defendant was affirmed.
The rule in the Buckman case as to taxation of costs and disbursements controlled in State v. Fullerton, 124 Minn. 151,144 N.W. 755, where the state attempted to recover $18,372.75 from the treasurer of the state board of medical examiners. There, the trial court sustained defendant's demurrer to the complaint, which was affirmed by this court. The clerk's taxation of costs and disbursements in favor of defendant was also affirmed. The court said (124 Minn. 154, 144 N.W. 756):
"* * * The present action is not, strictly speaking, one by the state in its governmental capacity, any more than was the Buckman case. Each proceeded upon the theory of an alleged property right; in the Buckman case, the right to damages for trespass upon state lands, and in this case, the right to money alleged to be the property of the state and to be wrongfully detained by the defendant. The governmental authority was not involved in either action. *Page 427 Such authority is involved in penal actions, in those to enforce the payment of taxes, (State v. Northwestern Elev. Co.101 Minn. 192, 112 N.W. 68, 1142) or to determine the legality of the organization of a municipal subdivision of the state, (State ex rel. Simpson v. Village of Dover, 113 Minn. 452,130 N.W. 74, 539) but not in an ordinary action for the recovery of money or property."
In State ex rel. Smiley v. Holm, 186 Minn. 331,243 N.W. 133, it was held that costs and disbursements were not taxable in this court against the secretary of state when his conduct involved in the litigation pertained to his governmental duties in the interest of the state. In that case, the secretary of state, presumably acting under the advice of the attorney general, was administering his office in obedience to a resolution which the governor had vetoed, but it was claimed that the veto was ineffectual. This court, in State ex rel. Smiley v. Holm, 184 Minn. 228, 238 N.W. 494, sustained the contention of the secretary of state, and costs and disbursements were taxed against relator in the sum of $69.25, which he paid. Relator later appealed from a final judgment, which was affirmed by this court in State ex rel. Smiley v. Holm, 184 Minn. 647, 238 N.W. 792. This judgment was reversed upon review by the United States Supreme Court. Smiley v. Holm,285 U.S. 355, 52 S. Ct. 397, 76 L. ed. 795. After the case was returned to this court, relator, upon notice, applied to the clerk for taxation of costs and disbursements aggregating $283.25, including the $69.25. The clerk construed the secretary's conduct as the acts of a constitutional officer of the state in relation to governmental affairs of the state and disallowed the application. Relator then appealed. Relator taxed costs in the United States Supreme Court. Under a rule in that court, costs and disbursements are taxed against a state just the same as against any other litigant. Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S. Ct. 97, 72 L. ed. 168. That is not true in this court. In that case we said (186 Minn. 332,243 N.W. 133):
"When the state acts in its sovereign capacity, costs and disbursements cannot be taxed against it. Respondent here acted for *Page 428 the public. He represented the state. For all practical purposes he was the state. His error in judgment does not change the situation. It is only in exceptional cases that the state is liable for costs and disbursements. While acting in its sovereign character it is immune; but when it descends to the level of those with whom it associates and interests itself in property and proprietary rights as distinguished from governmental prerogatives, it subjects itself to the same liability for costs and disbursements as any litigant. The statute which allows costs and disbursements 'in every action,' G. S. 1923 (2 Mason, 1927) § 9473, is subject to this exception in favor of sovereignty."
It appears to us that the rule applied in the Buckman and Fullerton cases is applicable here. The state proceeded upon the theory of an alleged property right — the right to have the funds involved escheat to the state in the event that they had been abandoned. If the state had prevailed and no one had claimed the abandoned funds within the statutory time, the state rightfully would be entitled to the money. For that reason, it appears to us that this is not an action in the nature of a penalty, such as one to enforce the payment of taxes, but that it is an ordinary action for the recovery of money or property.
The clerk's taxation of costs and disbursements is affirmed. *Page 429