City Council v. Foster , 54 Ala. 62 ( 1875 )

BRICKELL, C. J.

At common law costs Aere not recoverable by either party, in any case civil or criminal. They are given by statute, and it is declared “the law of costs must be deemed and held a penal law, and no fee must be taken but in eases expressly provided by law.”—R. C. § 3534; Stewart v. Hood, 10 Ala. 600; Lee v. Smyley, 16 Ala. 773; Bent & McGruder v. State, 12 Ala. 514; Tuck v. State, 8 Ala. 664.

The ordinances of a municipal corporation are punitive regulations, and the object of a proceeding for a violation of them is not redress for a civil injury, but the punishment of an offender against the peace and good order of society. The violation is punished by fine, or by corporal punishment, and the fine is payable into the municipal treasury, not appropriated to the compensation of individual injury, suffered from the offense. The prosecution for the violation cannot be instituted otherwise than by the corporate authorities, and however grievous the wrong inflicted on an individual, is not within his control. Hence, a prosecution for a violation of a municipal ordinance, designed for the preservation of the public peace, the security of person or property, or the protection of public morals, has been several times declared by this court, a quasi criminal proceeding, and not a civil suit or action.—Withers v. State, 36 Ala. 252; Brown v. Mayor of Mobile, 23 Ala. 722; Furhman v. Mayor, &c., present term.

The only statute which can be supposed to authorize the imposition of costs on municipal corporations on an unsuccessful prosecution for violation of its ordinances, is § 2779 of the Bevised Code, giving costs as a matter of right to the successful party in civil actions at law. Tbe prosecution not being a civil action, does not fall within this statute, and extending it by construction to such a prosecution, would be. inconsistent with the statutory declaration that the law of costs is to be deemed penal.

In the imposition of costs on the appellant the circuit court erred, and its judgment is reversed and the cause remanded.