(concurring in part and dissenting in part).
[¶29.] I concur on Issues 2 and 3 but dissent on Issue 1.
[¶ 30.] SDCL 15-17-37 provides in part that “[t]he prevailing party in a civil action ... may recover expenditures necessarily incurred[.]” Meyer is the prevailing party and these expenditures were “necessarily incurred in gathering and procuring evidence or bringing the matter to trial.”
[¶ 31.] The option to recover disbursements under this statute is given to the prevailing party, not to the trial court or the Supreme Court. SDCL 15-17-37; Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 SD 116, ¶ 31, 587 N.W.2d 580, 584 (finding that the SDCL 15-17-54 language “may tax” provides the trial court no discretion in granting or denying the taxation of costs.).
[¶32.] The reason the word “may” is used instead of “must” or “shall” is that, in some cases, the amount of disbursements may be so small as to not warrant the time, trouble, and expense of attempting to recover them. However, that does not make the awarding of disbursements necessarily incurred discretionary with the trial court.
[¶ 33.] Any discretion to deny the prevailing party his expenditures under SDCL 15-17-523 in the “interests of justice” or under SDCL 15-17-534 if the award of disbursements works an oppression or a hardship is certainly not satisfied by the bare statement of the trial court that “I find no innocence on either side, I’m denying costs.”
[¶ 34.] The trial court made no findings of fact or conclusions of law on either point or statute. Both statutes imply a reduction or limitation on taxation of disbursements if they were excessively incurred. Neither statute implies a complete denial of all expenditures.
[¶ 35.] In an opinion filed as recently as May 26, 1999, Clausen v. Aberdeen Grain, 1999 SD 66, ¶ 27, 594 N.W.2d 718, 724 (1999) the majority of this court “reverse[d] the trial court’s denial of Wheat-growers’ motion for taxation of costs and remand[ed] to the trial court for a determination as to what costs and disbursements Wheatgrowers may be entitled to collect from Clausen.” That seems like a waste of time in view of the rule of the majority in this case, which appears to permit the trial court to deny costs without findings of fact simply by saying “nobody’s innocent.”
[¶ 36.] Under this majority opinion, the trial courts will have open-ended “carte blanche” license to deny all expenditures necessarily incurred whether supported by the findings or not. We should reverse and remand for findings to support either the “interests of justice” or “oppression or hardship.” Since we are already remanding for other reasons, it would be very simple to follow the law.
. SDCL 15-17-52 provides:
The court may limit the taxation of disbursements in the interests of justice.
. SDCL 15-17-53 provides:
The court may reduce or disallow a taxation of disbursements that would be oppressive or work a hardship.