City of Charleston v. Beller

• Decision Date: 20 April 1898
• Citation: 30 S.E. 152,45 W.Va. 44
• Parties: CITY OF CHARLESTON v. BELLER et al.
• Court: West Virginia Supreme Court

30 S.E. 152

45 W.Va. 44

CITY OF CHARLESTON v. BELLER et al.

Supreme Court of Appeals of West Virginia.

April 20, 1898

Submitted April 15, 1898

Syllabus by the Court.

1. Violation of the public ordinances of cities, towns, and villages are strictly criminal in nature, being offenses against the public, and not merely private wrongs.

2. In prosecutions for such offenses, costs are not recoverable against such city, town, or village.

3. Prohibition is the proper remedy to prevent the enforcement by execution, of an unauthorized judgment for costs.

Application by the city of Charleston for a writ of prohibition against F. A. Guthrie, judge, and George Beller. Writ awarded.

C. B Couch and Flournoy, Price & Smith, for petitioner.

W. E Chilton, J. H. Holt, and McWhorter & Loewenstein, for respondent.

DENT J.

The city of Charleston prays a prohibition against the judge of the circuit court of Kanawha county, prohibiting the enforcement of a judgment for costs entered against the petitioner, in favour of one George Beller, in a prosecution for a violation of the ordinances of the petitioner originally instituted before the mayor, and appealed by the accused from his judgment to such circuit court. It is admitted that the petitioner would not be liable for costs at common law, and that they can only be imposed by virtue of statutory enactment. The statutes of this state have clearly provided for the allowance of costs in all civil proceedings to the party substantially prevailing; but in criminal proceedings they only allow costs to be recovered against the accused in case of conviction, and in some cases in his favour on acquittal against a private prosecutor, but never against the public, the state, or its authorized representative. A controversy is thus raised as to whether prosecutions for violations of the ordinances of municipalities are civil or criminal proceedings. The legal definition of crime at common law was a capital offense, and all other offenses were misdemeanors. It is now sought to limit the definition, not alone to capital offenses, but to such offenses as are declared to be criminal by positive legislative enactment, known as "felonies" and "misdemeanors," excluding therefrom offenses against the ordinances of municipalities, although imposed by legislative authority. The true definition of the word "criminal," however, as distinguished from the word "civil," as recognized by the laws of this state, beginning with section 3, art. 8, of the Constitution, defining the powers of this court, and ending with section 232, c. 50, of the Code, relating to the duties of justices under town and village ordinances, is a violation of any law or ordinance of man subjecting the offender to public punishment, including fine or imprisonment, and excluding redress for private injury, punitive or compensatory. Because section 232 provides that "the proceeding in such case shall be by summons in the corporate name of the town or village as plaintiff, and shall conform so far as practicable, to the regulations respecting civil actions before justices," the criminal character of the offense involved is not converted into a demand of a civil nature, for the reason that criminal proceedings, so far as practicable, and not repugnant thereto, always correspond to civil proceedings, unless otherwise provided.

Proper process, unless otherwise ordered by the court, in all misdemeanor cases, is a summons, to be followed by a capias when necessary (section 14, c. 158, Code), and in the name of the state as plaintiff. Imprisonment for debt, or arrest in civil cases, except for fraud, has become obsolete. So that section 232, in providing for a summons in the name of the municipality as plaintiff, to be converted into a capias by indorsement when necessary, complies strictly with criminal procedure; the name of the municipality being merely substituted for the state, to distinguish the prosecutions from each other, and control the disposition of the fines and costs when recovered. Nor is a mayor of any city, town, or village governed by sections 231 to 233, inclusive, of chapter 50, Code. Being ex officio a justice, he has the right to conform his proceedings to these sections if he chooses so to do. Ridgway v. Hinton, 25 W.Va. 554; Jelly v. Dils, 27 W.Va. 282. His authority is not derived from these sections. Their only purpose, not withstanding the mistakes of punctuation, which do not appear in Acts 1881, c. 8, nor Acts 1885, c. 36, was to confer on justices, strictly speaking,--not mayors,--the authority to try offenses against town and village ordinances, where the punishment was limited to not exceeding $10 fine or 10 days' imprisonment. The reason that section 230 was not expressly included in section 233 was because it was self-acting, and in a proper case did not need the aid of another section to make it applicable, its wording being as follows: "Every person sentenced to imprisonment under this chapter by the judgment of a justice or to the payment of a fine of ten dollars or more (and in no case shall a judgment for a fine of less than ten dollars be given by a justice if the defendant, his agent or attorney object thereto), shall be allowed an appeal to the circuit court; *** and the court shall proceed to try the case as upon an indictment or presentment, and render such judgment without remanding the case as the law and the evidence may require. If the judgment be against the accused, it shall include the costs incurred in the proceedings before the justice, as well as in the said court, including a fee of ten dollars for the prosecuting attorney, and the jailer's fees, if any." By the use of the words "under this chapter," this section is made applicable to the offenses included in section 231, when the punishment inflicted is imprisonment or a fine of $10 and the fine, if so fixed by ordinance, may always be $10 if the accused so require. The authority of a mayor of a city, town, or village is not derived from section 231, but exists independent of such section, by virtue of chapter 47, Code, or the special charter of incorporation granted by the legislature. By section 31, c. 58, Acts 1895, the mayor of the city of Charleston is made a justice of the peace within the city, and authorized to exercise all the powers and duties vested in justices, except jurisdiction in civil cases; thus clothing him with the full criminal jurisdiction of a justice,...