On Petition for a Rehearing.
Howk, J.On the 8th day of January, 1884, the judgment below in this cause was reversed by this court at the costs of the appellee’s relator, the attorney general of the State at the time the suit was commenced. Since then, an earnest petition has been filed, by and on behalf of the at*444torney general, wherein we are asked to set aside our judgment against him for costs. The point is made that “ the-State is not liable for costs, and when the State institutes an action, on the relation of the attorney general or other public officer, such officer is not liable for costs, unless the statute so expressly provides.” It is doubtless true, as a general rule, that the State is not liable for costs, and especially so in criminal causes, which are prosecuted by and in the name of the State. Costs are given or withheld by statute. Smith v. State, 5 Ind. 541, and Dearinger v. Ridgeway, 34 Ind. 54.” Schlicht v. State, 56 Ind. 173.
Section 593, R. S. 1881, of the civil code, provides as follows : “ Relators, and persons and corporations for whose use an action is brought, whether such use is shown by the pleadings of the plaintiff or defendant, shall be liable for costs jointly with the actual parties to the action ; but when: the State is plaintiff, the relator only shall be liable, and judgment for costs shall be rendered accordingly.” Literally construed, and giving the words used “ their plain, or ordinary and usual sense,” as required by the first rule for the construction of statutes (section 240, R. S. 1881), there can be no doubt, we think, that the section quoted fully authorized and warranted our judgment against the relator for costs in this cause. It is said, however, by the attorney general that “ this section of the statute applies to cases where the relator is the party in interest, and does not apply to a. relator acting for and on behalf of the State.” It is claimed that this court has decided that, in such cases, the relator is not liable for costs; and, in support.of this claim, appellee’s counsel cite the case of State, ex rel., v. Board, etc., 85 Ind. 489. It can hardly be said that the opinion in that case affords very much, if any, support to the claim of the appellee in the case in hand. In the case cited, it is said: “ The question of costs is one over which the courts in many cases have a discretion, and this being a case in which the State *445was practically the plaintiff, and one of its subordinate municipal corporations was defendant, involving questions concerning the custody and control of public funds, we do not feel at liberty to say that the court erred in refusing to render judgment against the relator for costs.” This is all that was said by the court, in that case, upon the point now under consideration, and we do not regard it as decisive of the question.
Filed June 25, 1884.If the ultimate payment of the costs taxed against the relator, in such a case as the one at bar, fell upon him person.ally out of his own private means, there would be much force in his claim, that he should not be held liable for such costs, notwithstanding the plain provisions of section 593 above quoted. It is provided, however, in section 5585, R. S. 1881, in force since May 6th, 1853, that “ For breach of the condition of any official bond, by which the State is injured, the Governor shall direct suit to be brought, upon his own relation, unless otherwise provided by law; and all costs taxed against such relator shall be paid by the State.” This section of the statute has never been expressly repealed, but its provisions are still in full force, except that all suits therein provided for, under the provisions of section 5668, R. S. 1881, in force since March 10th, 1873, must be brought upon the responsibility of the attorney general,- and upon his .relation. Liberally construing the provisions of section 5885 in connection with section 593, above quoted, as we think wc ought to do, we reach the conclusion that our judgment against the attorney general, as relator, for costs in this cause, is right and ought not to be modified or set aside, but that in the language of the statute, “all costs taxed against such relator shall be paid, by the State.”
The petition is overruled, with costs.