City of Spokane v. Smith

• Decision Date: 23 March 1905
• Citation: 79 P. 1125,37 Wash. 583
• Parties: CITY OF SPOKANE et al. v. SMITH.
• Court: Washington Supreme Court

79 P. 1125

37 Wash. 583

CITY OF SPOKANE et al. v. SMITH.

Supreme Court of Washington

March 23, 1905

Appeal from Superior Court, Spokane County; W. E. Richardson, Judge.

W. J Smith, having been found not guilty on a prosecution for violating an ordinance of the city of Spokane, caused an order to be entered requiring the corporation counsel to approve a cost bill for the fees of defendant's witnesses, and from such order the city and others appeal. Reversed.

E. O. Connor, for appellants.

J. M Simpson and R. L. Edmiston, for respondent.

HADLEY J.

This appeal involves a proceeding in the nature of mandamus against the corporation counsel of the city of Spokane and his assistant. Respondent was arrested and tried before the police court of said city on the charge of permitting an animal to run at large within the city limits in violation of a city ordinance. He was found guilty in the police court and a fine was assessed against him. He appealed to the superior court, where, by the verdict of a jury, he was found not guilty. A cost bill was thereupon filed for the fees and mileage of respondent's witnesses who attended upon the trial in the superior court, the total amount claimed being $199.60. An application in the form of a motion supported by affidavit was then made to the court to require the corporation counsel of the city to approve the cost bill. An order to show cause why he should not approve it was issued upon said application. Thereupon the corporation counsel appeared specially, and objected that the court had no jurisdiction or power in the premises. The objection was overruled, and thereafter the court entered an order to the effect that certain witnesses named are entitled to fees and mileage amounting in the aggregate to $164.40 and that the several items are proper charges against the city. The order also required the corporation counsel and his assistant to forthwith approve the cost bill. This appeal is from said order.

The effort to secure the approval of the corporation counsel, and also his refusal, are based upon the contentions of the respective parties as to the force of a certain city ordinance. The ordinance creates what is called a 'police court fund' of said city, specifying what moneys shall be placed therein, and provides that witnesses and jurors in attendance upon the police court shall be paid from said fund. A section of the ordinance also provides as follows: 'Witnesses subpoenaed by the city duly in attendance upon the superior court of this county in cases upon appeal from the police court may be paid from said sum upon a certificate from the county clerk containing the name and amounts due such witnesses, and upon same being approved by the corporation counsel, or his assistant, said certificate shall be filed with the city comptroller, who shall transmit same to the city council for final action.' It will be seen that, by the terms of the ordinance, witnesses subpoenaed by the city in cases appealed from the police court to the superior court shall be paid from the above-mentioned fund when the amounts have been approved by the corporation counsel. The ordinance is absolutely silent as to any fund or method for payment of witnesses subpoenaed by the defendant when the cause is appealed and tried in the superior court. Appellants' contention is that, inasmuch as the ordinance does not in terms provide for the payment of the defendant's witness fees in the superior court, no fees are therefore recoverble against the city. But respondent, upon the other hand, contends that the fees are recoverable, and assumes that, before they can be recovered, the items must receive the approval of the corporation counsel. We shall examine these respective contentions.

It does not necessarily follow from the mere fact that a certain fund is designated for the payment of the city's own witnesses, and the manner of payment outlined, that the city thereby meant to say that it would not in any manner become liable for the fees of a defendant's witnesses on appeal. The section deals affirmatively with the payment of the city's witnesses, and there is nothing to negative liability for the defendant's witness fees, unless it is inferred from the mere fact of silence upon the subject. This is not sufficient to establish the city's intention to declare that it is not liable, and we think the ordinance is therefore not invalid as conflicting with any statute, if there is any statute that makes the city liable--a subject which we shall next examine.

Appellants argue that charges for the violation of municipal...