
    State ex rel. Rusk v. Budge et al., State Capitol Commissioners.
    Opinion filed February 23, 1906.
    Costs — Discretion.
    Under the discretion as to the matter of costs in an original suit in equity, vested in .the court by Rev. Codes 1899, section 5580, commissioners appointed under a statute to execute its provisions, and who are in good faith attempting to perform their duties, will not be taxed with costs, on being enjoined because of the invalidity of the statute.
    Motion to tax costs.
    Denied.
    For former opinion, see 105 N. W. 724.
   Per Curiam.

The decision and order for judgment in the above entitled matter made no mention of costs, and the clerk therefore declined to tax any costs or insert in the judgment any provision for the recovery thereof. The plaintiff has applied for an order requiring the clerk to do so. This is an original suit in equity commenced in this court; hence costs may be allowed or withheld in the discretion of the court. Section 5580, Rev. Codes 1899. Under the circumstances of this case we do not think costs should be allowed. The defendants had been appointed to execute the provisions of a statute and were in good faith attempting to perform their duty. It would be unjust to mulct them for the mistakes of the legislature.

(106 N. W. 293.)

The applicaion is denied.  