At Fall Term, 1894, upon the hearing, the Court being of opinion, on the authority of S. v. Spencer, 114 N.C. 770 that the plaintiff was not entitled to recover, the plaintiff submitted to a nonsuit, and on its motion judgment was entered against the county of Pamlico for the costs of the action. From said judgment the county of Pamlico (having been made a party for that purpose) appealed to the Supreme Court, and on appeal said judgment was reversed as to taxing the costs against Pamlico County. Stateon relation Blount v. Simmons, 118 N.C. 9. On the hearing upon the certificate of the Clerk of the Supreme Court at Spring Term, 1896, of PAMLICO, Robinson, J., on motion of counsel for defendants and the officers of the Court, rendered the following judgment, to wit: *Page 29
"The Supreme Court having adjudged that so much of the judgment heretofore rendered as taxed the costs against the county of Pamlico was erroneous, it is, thereupon, on motion of Simmons Ward, attorneys for the officers of the Court and the defendants, adjudged that the county of Pamlico is not liable for the costs, and further, that the State of North Carolina do pay the costs of this action, to be (51) taxed by the Clerk, and that the Clerk's office do recover of the State of North Carolina the costs. It is further ordered that W. J. Leary, present Solicitor, be added as a relator."
Plaintiff excepted to the judgment, and appealed, assigning as error the part of said judgment that taxes the State of North Carolina with the costs. This action was authorized by Laws 1893, ch. 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 against the State, and that is true. Battle v. Thompson, 65 N.C. 406. But this is not an 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 can not 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 can not be sued, and enables the citizen to obtain the opinion of the Supreme Court as a recommendation to the Legislature, and no more. The application to the Court can not result in a judgment for the claim of the citizen. The costs in this case are (52) not strictly a claim against the State, as contemplated by article IV, 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. *Page 30 Cited: Wikel v. Comrs., 120 N.C. 452; Garner v. Worth, 122 N.C. 253;White v. Auditor, 126 N.C. 612; Miller v. The State, 134 N.C. 271.