Nephi City v. Forrest

126 P. 332, 41 Utah 433, 1912 Utah LEXIS 75

• Court: Utah Supreme Court
• Decided: August 17, 1912
• Docket: No. 2363
• Status: Published

Opinion

McCarty, j.

On August 1, 1911, tbe defendant was tried and convicted in tbe justice court at Nepbi City, Juab County, for having, on tbe 19tb day of May, 1911, sold intoxicating liquor in violation of tbe provisions of an ordinance passed by tbe city council of Nepbi City October 1, 1909. Tbe defendant appealed tbe case to tbe district court of Juab County. A trial was bad in that court, and! tbe defendant was again" convicted, and sentenced to pay a fine of $125. From tbe judgment rendered' in tbe district court, tbe defendant appeals to tbis court.

1 Tbe defendant, in bis assignment of errors, assails tbe judgment on tbe ground that tbe city ordinance under wbieb be was prosecuted was, in effect, repealed by chapter 106, Sess. Laws 1911. That act went into effect ten days before tbe crime here charged was committed. Tbe case comes clearly within the rule announced in tbe case of Pleasant Gi’ove Oily v. Lindsay (recently decided by tbis court) 41 Utah, 154, 125 Pac. 389. It was held in that case “that in adopting chapter 106 it was tbe intention of tbe legislature to supersede all legislation with regard to tbe liquor traffic, whether special or general.” Counsel for respondent Nepbi City concedes that, under tbe authority of tbe case mentioned, tbe conviction in tbe case at bar cannot be upheld, and that tbe judgment must be reversed and tbe case dismissed. It is only fair to tbe trial court to say that tbis cause was tried and judgment rendered1 in tbe district court before tbe opinion of tbis court in Pleasant Grove City v. Lindsay was announced.

2 Tbe most serious question presented by tbis appeal is tbe question of costs. Appellant insists that as tbe judgment of the district court must be reversed, and tbe ease dismissed, be is entitled to a judgment against tbe defendant for costs. On tbe other band, counsel for tbe city vigorously contend that, tbis being a criminal action, tbe defendant is not entitled to a judgment for costs. Tbe general rule seems to be that in oases of tbis kind, brought by a municipality for tbe violation of its ordinances, tbe defendant’s costs cannot, in tbe absence of a statute authorizing it, be taxed against tbe municipality. (11 Cyc. 287; 5 Ency. Pd. & Pr. 151; City of Charleston v. Beller, 45 W. Va. 44, 30 S. E. 152; Town of Nokomis v. Harkey, 31 Ill. App. 107; City of Petersburg v. Whitnack, 48 Ill. App. 663; City Council of Montgomery v. Poster, 54 Ala. 62; City of Selma v. Stewart, 67 Ala. 338.)

3 Appellant, in support of bis contention that be is entitled to a judgment for costs, cites and relies upon Comp. Laws 1907, sec. 3339, wbicb, so far as material here, provides that “costs are allowed of course to tbe prevailing party in tbe following cases: . . . (5) In an action wbicb involves the title or possession of real estate, or tbe legality of any tax, impost, assessment, toll, or municipal fine.” We think tbis section is applicable to civil actions only. In tbe case of Salt Lake City v. Robinson, 39 Utah, 260, 116 Pac. 442, 35 L. R. A. (N. S.) 610, tbis court held that prosecutions conducted in tbe name of a municipality for violations of its ordinances are in their nature criminal and not civil actions, and we there held that a different rule applies in tbe taxation of costs in criminal actions than obtains in civil actions in wbicb tbe municipality is a party. In tbe course of tbe opinion it is said:

“If proceedings instituted for the purpose of procuring convictions for the violation of ordinances are criminal, then one rule with respect to the payment of costs prevails; while, if they are civil, then another and different rule must he applied.”

Tbis being in the nature of a criminal action, it does not fall within section 3339, and, as there is no statute authorizing tbe taxation of costs against a municipality in cases of this kind, it follows tbat appellant is not entitled to a judgment for costs.

The judgment is reversed, with directions to the lower court to dismiss the action.

FEIGN, 0. L, and STEAUP, J., concur.