
    MARSTON CAMPBELL, SUPERINTENDENT OF PUBLIC WORKS OF THE TERRITORY OF HAWAII, v. JAMES STEINER, MRS. THERESA LOUISSON, THE FIRST NATIONAL BANK OF HAWAII, AN HAWAIIAN CORPORATION HAVING ITS PRINCIPAL OFFICE AT HONOLULU, TERRITORY OF HAWAII, ELIZABETH J. MONSARRAT, R. W. SHINGLE, SIMPSON DECKER, JESSE M. McCHESNEY, ED. TOWSE, AND CHARLES W. ZEIGLER, TRUSTEES OF MYSTIC LODGE NO. 2, KNIGHTS OF PYTHIAS OF HONOLULU, MYSTIC LODGE NO. 2, KNIGHTS OF PYTHIAS OF HONOLULU, LIBERT HUBERT J. L. BOEYNAEMS BISHOP OF ZEUGMA, VICAR APOSTOLIC OF HAWAII, ST. LOUIS COLLEGE ALUMNI ASSOCIATION, AN HAWAIIAN CORPORATION HAVING ITS PRINCIPAL OFFICE AT HONOLULU, TERRITORY OF HAWAII, JAMES F. MORGAN, JOHN SULLIVAN, JOHN BUCKLEY, JOHN DOE, MARY DOE, AND RICHARD ROE, UNKNOWN OWNERS AND CLAIMANTS.
    Reserved Questions from Circuit Court, First Circuit.
    Submitted April 10, 1911.
    Decided April 12, 1911.
    Robertson, C.J., Perry and De Bolt, JJ.
    
      Costs — territorial officer exempt from.
    
    In proceedings instituted by one as superintendent of public works on bebalf of the Territory costs are not taxable against the plaintiff upon the sustaining of a demurrer on the ground that the Territory, and not the superintendent, should be the party plaintiff.
   OPINION OF THE COURT BY

PERRY, J.

Upon interlocutory exceptions to the overruling of a demurrer in this case we have held that “the demurrer should be sustained without leave to amend and without prejudice to the right of the Territory or other governmental authority to institute such proceedings as may be advised,” and remanded the cause for further proceedings not inconsistent with the opinion. Ante 365. Subsequently in the circuit court the plaintiff filed a discontinuance and three of the defendants presented hills of costs for taxation. The following questions have been reserved by the circuit court for the consideration of this court: (1) Has plaintiff the right to file a discontinuance after the former decision of this court directing the entry of judgment for the defendants on the demurrer? (2) Has the trial court “the right or duty to enter judgment on the pleadings?” (3) “Should costs be taxed at all against this plaintiff ?”

E. W. Sutton, Deputy Attorney General, for plaintiff.

Thompson■, Clemons & Wilder and C. C. Bitting for defendants.

The plaintiff has expressly abandoned in this court the claim of a right to discontinue, thus rendering unnecessary an answer to the first question. 'On the subject of costs, section 1 of Act 63 of the taws of 1907 applies. “Neither the Territory nor any County or Municipality thereof or any officer acting in his official capacity on behalf of the Territory or any County or Municipality thereof, shall be taxed costs or required to pay the same or file any bond or make any deposit for the same in any case.” The language of the statute is plain. No officer acting in his official capacity on behalf of the Territory may be taxed costs in any case. The facts .are undisputed. The plaintiff sued not in his individual capacity but as superintendent of public works “acting on behalf of the Territory of Hawaii.” The condemnation of land prayed for was solely for the benefit of the superintendent of public works representing the Territory of Hawaii. While the title and the allegations of the petition were insufficient, .as we held, to render the Territory the party plaintiff, nevertheless the petition was that of an “officer acting in his official.capacity on behalf of the Territory.” See In re Jew Yuen Mow, ante 359, 360, 361.

Answering the reserved questions, the circuit court is advised that judgment should be entered as directed in our former opinion and order, and that costs should not be taxed against the plaintiff.  