State v. Nance , 69 Tenn. 644 ( 1878 )

Deadeeick, C. J.,

delivered the opinion of the court.

This record presents the question whether the State, under sec. 3205 of the Code, is entitled to recover, •■as costs, against the successful party, the tax upon the' unsuccessful- party imposed by sec. 551 of the Code.

The Circuit Judge held adversely to the right, and the State has appealed to this court.

See. 3204, under which the right is claimed, provides as follows:

“ All costs accrued at the instance' of the successful party which cannot' be collected out of the. other party, may be recovered, on maotien,' by the persons ■entitled to them, against the ¿^focessful party.”

For the State it is mau&yjp^ that the tax imposed by sec. 551, is part of th¿« .costs of the successful party, and is due to the State, and may be recovered under the section quoted. > On the other hand, it is insisted that the tax is not properly part of the costs of the cause, but a tax imposed upon the unsuccessful party. Costs are the expenses incident to the conduct of a suit, either in its prosecution or defense, and such disbursements as are allowed by law, -as fees to witnesses and officers of court. 1 Bov. Law Dic., 376; 3 Sneed, 62; 1 Swan, 110.

The State tax upon litigation .imposed by sec. 551 of the Code, is, in the language of the act, “a specific tax” upon the “unsuccessful party” to the litigation. It is not a part of the necessary expenses incident to the suit, but is imposed by the legislature as a “specific tax” upon unsuccessful litigants for the purpose of raising revenue for the State. This section is found under title, 5, ch. 1, treating “of the revenue of the State,” and of the “sources of public revenue.” And in sees. 553, 553a, which specify the rates and enumerate the subjects of taxation, are found “original suits,” “appeals,” etc., with “circuses,” “brokers,” “pedlers,” etc.

The language of sec. 3204 shows that the benefits of the act are intended for “persons” entitled to costs which may have accrued in the progress of the cause, and not for the purpose of aiding the State in the collection of a tax by transferring a liability to the successful party, which, by the express terms of the-act imposing the tax, is “a specific tax,” payable to-the State by the “unsuccessful party” to the litigation,.

Let the judgment be affirmed.