Mr. Chief Justice TAFT delivered the opinion of the Court.
The clerk has asked instruction concerning the taxation of costs.
By far the greater number of suits between states have been brought for the purpose of settling boundaries. 1 In the first, Rhode Island v. Massachusetts, 4 How. 591, 639, the bill was dismissed. There was no provision as to costs in the decree and the record of fees is not available. In [263 U.S. 583, 584] Missouri v. Kentucky, 11 Wall. 395, the bill was dismissed with costs, from which we infer that the defeated party paid them. In the remaining 13 the costs were equally divided.
In Nebraska v. Iowa. 143 U.S. 359, 370 , 12 S. Sup. Ct. 396, 400 (36 L. Ed. 186) Justice Brewer, speaking for the court, said:
And in Maryland v. West Virginia, 217 U.S. 577, 585 , 30 S. Sup. Ct. 630, 632 (54, L. Ed. 888), Mr. Justice Day delivering the opinion of the court, said:
The same rule, however, does not apply to cases in which the parties have a litigious interest. In New Hampshire v. Louisiana, and New York v. Louisana, 108 U.S. 76, 91 , 2 S. Sup. Ct. 176, the complainant states brought suits upon bonds of Louisiana assigned to them by their citizens for the purpose of avoiding the inhibition of the Eleventh Amendment. The suits were dismissed, with costs adjudged against the complainants.
In Sough Dakota v. North Carolina, 192 U.S. 286, 321 , 24 S. Sup. Ct. 269, the suit was on bonds of North Carolina donated by the original purchasers to South Dakota, and there was judgment [263 U.S. 583, 585] for South Dakota for the amount due, with costs of suit.
In Missouri v. Illinois, 200 U.S. 496 , 26 Sup. Ct. 268, which was a bill to restrain Illinois and her subordinate agency, the Chicago Sanitary District, from discharging sewage into the Mississippi and exposing the people of Missouri to danger of typhoid fever from germs in their drinking water, the bill was dismissed without prejudice, but the costs were adjudged against the complainant state.
In New York v. New Jersey, 256 U.S. 296, 313 , 41 S. Sup. Ct. 492, the bill sought to restrain the pollution of the harbor of New York. The bill was dismissed without prejudice, but the costs were adjudged against New York.
In Kansas v. Colorado, 206 U.S. 46, 117 , 27 S. Sup. Ct. 655, the suit was brought to enjoin diversion of flowing water. Apparently the court regarded the issue as a nonlitigious one, the settlement of which would be useful to both states, and, following the boundary cases, divided the costs. In Wyoming v. Colorado, 259 U.S. 496 , 42 Sup. Ct. 594; Id., 260 U.S. 1, 3 , 43 S. Sup. Ct. 2, where the issue was similar, the costs were adjudged one-third to Wyoming, one-third to Colorado, and one-third to two corporate defendants at whose expense the case had been defended by Colorado.
The present proceeding is clearly a litigious one. The persons whose lands were overflowed raised a fund to conduct the litigation. The bill of North Dakota asked for a decree of injunction with $5,000 for damages to state property and $1,000,000 for damages to residents of North Dakota, with the purpose, presumably, of distributing the latter sum to injured residents, contributors to the fund. The exact agreement as to the use of the funds thus raised does not appear in the record. When the state engineer of North Dakota, Mr. Ralph, the chief witness for the state, was cross-examined in respect to it, he refused to answer by advice of counsel for North Dakota. The natural inference is that the fund was being [263 U.S. 583, 586] used in the conduct of the litigation. We think that the circumstances put this case in the category with New Hampshire v. Louisiana, Missouri v. Illinois, and New York v. New Jersey, and that the costs should be taxed against North Dakota, the defeated party.
It is so ordered.
[ Footnote 1 ] Rhode Island v. Massachusetts, 4 How. 591, 639; Missouri v. Iowa, 7 How. 660; Id., 10 How. 1; Missouri v. Kentucky, 11 Wall. 395; Indiana v. Kentucky, 136 U.S. 479 , 10 Sup. Ct. 1051; Id., 159 U.S. 275 , 16 Sup. Ct. 320; Id., 163 U.S. 520, 527 , 16 S. Sup. Ct. 1162; Nebraska v. Iowa, 143 U.S. 359, 370 , 12 S. Sup. Ct. 396; Iowa v. Illinois, 147 U.S. 1 , 13 Sup. Ct. 239; Id., 151 U.S. 238 , 14 Sup. Ct. 333; Id., 202 U.S. 59 , 26 Sup. Ct. 571; Missouri v. Iowa, 160 U.S. 688, 692 , 16 S. Sup. Ct. 433; Id., 165 U.S. 118 , 17 Sup. Ct. 290; Missouri v. Nebraska, 196 U.S. 23 , 25 Sup. Ct. 155; Id., 197 U.S. 577 , 25 Sup. Ct. 580; Washington v. Oregon, 211 U.S. 127 , 29 Sup. Ct. 47; Id., 214 U.S. 205 , 29 Sup. Ct. 631; Missouri v. Kansas, 213 U.S. 78 , 29 Sup. Ct. 417; Maryland v. West Virginia, 217 U.S. 577, 585 , 30 S. Sup. Ct. 630; North Carolina v. Tennessee, 235 U.S. 1, 17 , 35 S. Sup. Ct. 8; Minnesota v. Missouri, 252 U.S. 273 , 40 Sup. Ct. 313; Minnesota v. Wisconsin, 254 U.S. 14 , 41 Sup. Ct. 10; Id., 258 U.S. 149 , 42 Sup. Ct. 269, 591; Arkansas v. Mississippi, 256 U.S. 28, 35 , 41 S. Sup. Ct. 444; Georgia v. South Carolina, 257 U.S. 516, 523 , 42 S. Sup. Ct. 173; Oklahoma v. Texas, 256 U.S. 574 , 42 Sup. Ct. 406.