1. A clause imposing costs inserted in a final judgment of this
Court by the clerk and approved by the Justice who wrote the
opinion disposing of the case is the act of the Court, not merely
of the clerk, and is beyond the power of the Court to recall after
expiration of the term. So held
where no petition for
rehearing was made within the 40 days allowed by Rule 30. P.
275 U. S.
2. As a party to litigation in this Court, a state is not immune
to costs in virtue of its sovereignty. P. 275 U. S.
3. A rule as to the awarding and division of costs is within the
inherent authority of this Court as to all litigants before it
except the United States. P. 275 U. S.
Page 275 U. S. 71
4. Costs may be awarded against states, as litigants before this
Court, in criminal as well a civil cases. Rule 29, § 3;
Jud. Code § 24, United States v. Gaines,
U.S. Appendix clxix, distinguished. P. 275 U. S. 75
This was a motion by the state to retax, i.e.,
eliminate, the costs allowed against it in this Court. The
allowance was included in a judgment reversing a conviction of the
Creamery Company in a state prosecution based on a statute which
the Court found unconstitutional. 274 U. S. 274
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a motion by the state of Minnesota to retax the costs in
this Court which by the judgment herein have been awarded against
it. The Fairmont Creamery Company was charged with an offense under
a statute of Minnesota before a justice of the peace, and was
convicted. The judgment was affirmed on appeal to the district
court for the county, and this was in turn affirmed by the supreme
court of the state. State v. Fairmont Creamery Co.,
Minn. 378, 381. The creamery company then sued out a writ of error
from this Court, which on April 11, 1927, reversed the judgment
because of the unconstitutionality of the statute under which the
conviction had been had. 274 U. S. 274
1. The following was the judgment:
". . . On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of
Page 275 U. S. 72
the said Supreme Court in this cause be, and the same is hereby,
reversed with costs, and that this cause be, and the same is
hereby, remanded to the said Supreme Court for further proceedings
not inconsistent with the opinion of this Court."
No application for rehearing was made during the term, which
ended on June 6, 1927. The mandate was issued and filed with the
Supreme Court of Minnesota in July, 1927. The motion of defendant
in error now before us was filed September 30, 1927.
Our Rule 30, effective July 1, 1925, provided that a petition
for rehearing may be filed with the clerk, in term time or in
vacation, within 40 days after judgment is entered, but not later.
It is contended by the plaintiff in error that the motion to retax
costs would amend the judgment after the term, and must be denied
for the reason that this Court has no further jurisdiction in the
matter. Peck v.
18 How. 42; Sibbald v.
12 Pet. 488, 37 U. S.
-492; Schell v. Dodge, 107 U.
, 107 U. S. 630
Phillips v. Negley, 117 U. S. 665
117 U. S. 674
In answer, it is said that this limitation upon the power of the
court does not include mere misprisions of the clerk or clerical
errors. Bank of Kentucky v.
3 Pet. 431; Bank of
United States v. Moss,
6 How. 31, 47 U. S. 38
the former case, the failure to include as damages in a judgment 6
percent interest when required by a rule of the court was held to
be a clerical error that could be corrected after the term. So it
is said that the inclusion of the costs in this case was a mere
misprision of the clerk, because merely added by the clerk without
any special order of the Court. This is inferred because no
reference to costs appears in the published opinion. It is not the
proper inference. The provision as to costs appears in the
judgment, the form of which was, in accordance with our practice,
approved by the Justice who wrote the opinion.
Page 275 U. S. 73
He acted under authority of § 3, Rule 29, providing:
"In cases of reversal of any judgment or decree by this Court,
costs shall be allowed to the plaintiff in error, appellant or
petitioner, unless otherwise ordered by the Court."
A clause in a final judgment affecting costs has been held to be
substantial, and not within the court's power to change after the
term. Jourolman v. East Tennessee Land Co.,
85 F. 251;
Staude Manufacturing Co. v. Labombarde,
247 F. 879. The
distinction between cases in which provisions as to interest or
costs may be changed after the term and those in which they cannot
be lies in the nature and source of the alleged error. If it is
made by the clerk in following or not following a rule of court, or
for some other reason, the error may be remedied; but, if the
action complained of was approved by the court, it is beyond
recall. Here, the judgment as to costs was the action of the Court.
See St. Louis and San Francisco R. Co. v. Spiller, post,
p. 275 U. S. 156
But we are not content to dispose of the motion on this ground
alone, even though it be adequate, for the main question is one of
much importance in the everyday practice before us, and ought to be
decided now. The argument for the state is that this is a criminal
case, that costs in criminal proceedings are only a creature of
statute, and that this Court has no power to award them against a
state unless legislation of the state has conferred it. This is the
rule as to the state court in Minnesota. State v. Buckman,
95 Minn. 272, 278. At common law, the public pays no costs; in
England, the King does not, and the state here, it is said, stands
in the place of the King. So it is insisted that, when the state is
brought into this Court as a defendant in error in a criminal
proceeding, and the judgment of the Court goes against it, costs
cannot be awarded against the state, because it is a sovereign.
That the sovereign is not to be taxed with costs in either civil
or criminal cases by rule of court without a statute
Page 275 U. S. 74
is undoubtedly true. Chief Justice Marshall, in the case of
United States v.
2 Wheat. 395, said: "The United States
never pay costs." In Reeside v.
11 How. 272 at 52 U. S. 290
this Court said:
"The sovereignty of the government not only protects it against
suits directly, but against judgments even for cost when it fails
12 Wheat. 546, 25 U. S. 550
United States v.
4 How. 286, 45 U. S. 288
United States v.
5 How. 29, 46
U. S. 51
See also Nabb v. United States,
1 Ct.Cls. 173;
Henry v. United States,
15 Ct.Cls. 162.
But is the state to be regarded as the sovereign here? This
Court is not a court created by the State of Minnesota. The case is
brought by a writ of error issued under the authority of the United
States by virtue of the Constitution of the United States. It is
not here by the state's consent, but by virtue of a law to which it
is subject. Though a sovereign, in many respects, the state, when a
party to litigation in this Court, loses some of its character as
For many years, costs have been awarded by this Court against
states. Under the judicial article of the Constitution, the
original jurisdiction of this Court includes suits to which a state
is a party. There have been many boundary and other cases brought
here by one state against another in which costs have been awarded
against one of them, and often against both. Usually they have been
divided, but if the case proves to be a "litigious case," so
called, all the costs have been assessed against the defeated
party. North Dakota v. Minnesota, 263 U.
. Missouri v.
7 How. 660, 48 U. S. 681
that this has been the practice since 1849. A rule of this Court as
to the awarding and division of costs is, of course, not a statute,
but such a rule seems to us to be within the inherent authority of
the Court in the orderly administration of justice as between all
parties litigant, properly within its jurisdiction,
Page 275 U. S. 75
except the sovereign government. This view is supported by the
history of Rule No. 37 of this Court in the January term of 1831, 5
Pet. 724. That shows that, against the dissent of Mr. Justice
Baldwin, this Court adopted a rule imposing costs against a
defendant for a transcript of record in cases of reversal. The
dissent was based on the ground that no costs could be imposed by
this Court by rule without specific authority of a statute.
It is insisted that while, in civil cases, costs may be awarded
against a state as a litigant before this Court, the rule does not
apply in criminal cases. As the objection to taxing costs against a
state has been because of its sovereign character, and that, as we
have said, has no application to a state as a litigant it this
Court, there would seem to be no more reason for immunity in a
criminal case than in a civil one. But it is pointed out that this
distinction has been made by this Court in the case of United
States ex rel. Phillips v. Gaines,
131 U.S. Appendix, clxix,
25 L. Ed. 733. That was a writ of error from this Court on a
certificate of division between the judges of the United States
Circuit Court for the Middle District of Tennessee. It was a
mandamus case brought to command the comptroller of the state to
issue his warrant to the state treasurer for the payment of a bill
of costs of an indictment against Phillips, one of the relators. In
1870, Phillips had been indicted in the County of Putnam for the
murder of one Ford. Phillips presented his petition to the state
court, praying for the removal of the indictment into the Circuit
Court of the United States by virtue of three Acts of Congress, the
first of March 3, 1863, c. 81, 12 Stat. 755, 756, § 5, the second,
of May 11, 1866, c. 80, 14 Stat. 46, § 3, and the last, of February
5, 1867, c. 27, 14 Stat. 385. Their purpose was to enable any
officer of the United States, military or civil, charged with a
crime against the state for acts done under color of federal
Page 275 U. S. 76
authority, to remove the prosecution into the Circuit Court of
the United States for trial by the state prosecuting officers in
that court. In 1874, the State of Tennessee, by her attorney,
appeared and dismissed the case, agreeing that the costs should be
adjudged against the state. The Circuit Court accordingly rendered
the judgment for costs. A warrant for the payment of the costs was
demanded from the state comptroller and refused. Mr. Justice
Strong, in deciding the case, said: "Costs in criminal proceedings
are a creature of statute, and a court has no power to award them
unless some statute has conferred it."
He pointed out that this was the rule in the State of Tennessee,
Mooneys v. State,
2 Yerg. (Tenn.) 578, but referred to an
Act of 1813 of that state in which it was provided that, in all
criminal cases above the grade of petit larceny where the defendant
was acquitted, costs should be paid out of the treasury of the
state. There were certain statutory prerequisites before they could
be paid by the comptroller. The judgment of this Court turned on
the fact that such prerequisites had not been complied with. The
language of the court indicated that costs could only be awarded in
accordance with the statute of the State of Tennessee. We do not
think that the case, on its facts, is an authority here. There was
a peculiar and exceptional situation. The case was a prosecution by
the State of Tennessee, and its trial by the state was bodily
transferred to the environment of the circuit court of the United
States. All incidents of a trial of the case in the state court
were regarded as following the case in the federal court. The
question of costs was therefore thought to be governed by the same
rule as it would have been in the state court.
Without reconsidering the correctness of that ruling, we think
the case here to be different. The costs here incurred are in a
litigation brought by writ of error into
Page 275 U. S. 77
this Court to test the validity under the federal Constitution
of a statute of the state. The incidents of the hearing are those
which attach to the regular jurisdiction of this Court. We have had
our clerk make an examination of our records reaching back to 1860.
There were 129 cases examined, which do not include the boundary
cases between states on the original docket already referred to. It
thus appears that, since that date, the invariable practice has
been, when the judgment has been against a state in both civil and
criminal cases, to adjudge costs against it, under the Rule which
is now § 3, Rule 29, of our present rules. That rule in different
forms, and under a different number, has been in force since the
February term, 1810. Dewhurst, Rules of Practice in the U.S. Courts
(2d ed.) 153. It has been in its present form since the January
term, 1858. See St. Louis & San Francisco R. Co. v.
p. 275 U. S. 156
think that the rule construed by long practice justifies us in
treating the state just as any other litigant, and in imposing
costs upon it as such, without regard to the inferences sought to
be drawn from United States ex rel. Phillips v. Gaines,
If specific statutory authority is needed, it is found in § 254
of the Judicial Code, which first appeared in the Act of March 3,
1877, c. 105, 19 Stat. 344, and was reenacted March 3, 1911, c.
231, 36 Stat. 1087, 1160. It provides that there shall be "taxed
against the losing party in each and every cause pending in the
Supreme Court" the cost of printing the record, except when the
judgment is against the United States. This exception of the United
States in the section, with its emphatic inclusion of every other
litigant, shows that a state as litigant must pay the costs of
printing, if it loses, in every case, civil or criminal. These
costs constitute a large part of all the costs. The section
certainly constitutes pro tanto
statutory authority to
impose costs generally against a state if defeated.
The motion is denied.