Averitt v. City of Coeur D'Alene

BAKES, Justice.

In January, 1977, the City of Coeur d’Alene revoked plaintiff respondent Averitt’s city beer license for alleged violations of the city and state regulations governing the sale of alcoholic beverages. Averitt petitioned district court to vacate the revocation order, arguing that the city had failed to notify Averitt of its intended action and had not provided Averitt with an opportunity to be heard in the matter. After a hearing, the district court entered a judgment vacating the city’s revocation order. In its judgment the court taxed plaintiff respondent Averitt’s costs and attorney fees incurred in the action against the defendant city.

The city appeals solely from the district court’s order taxing costs and attorney fees, arguing that the court had no power to assess costs and attorney fees against the city in the action. The appellant city argues that general statutory law, including statutes awarding costs, do not apply to the state or other governmental entities unless expressly so provided or unless by necessary implication, citing Chicago, Milwaukee & St Paul Ry. Co., et al. v. Public Utilities Comm’n of State of Idaho, 47 Idaho 346, 275 P. 780 (1929), and Chastain’s, Inc. v. State Tax Comm’n, 72 Idaho 344, 241 P.2d 167 (1952). It is the city’s contention that costs and attorney fees may not be assessed against a municipality acting in a governmental capacity unless the assessment is expressly provided or necessarily implied by statute.

Costs have been routinely awarded against municipalities in recent decisions by this Court. See, e. g., Local 1494 of Int’l Ass’n of Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 586 P.2d 1346 (1978); Butler v. City of Blackfoot, 98 Idaho 854, 574 P.2d 542 (1978); Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977); Winther v. City of Weippe, 91 Idaho 798, 430 P.2d 689 (1967); Gaige v. City of Boise, 91 Idaho 481, 425 P.2d 52 (1967). It is within the district court’s discretion to make a cost award against a municipality to a prevailing party in an action brought in district court.

The appellant City of Coeur d’Alene also argues that the trial court erred in including an attorney fee award in the cost bill taxed against the city. The district court’s award of attorney fees to plaintiff respondent Averitt was made pursuant to I.C. § 12-121 which authorizes the district court to award attorney fees, in the court’s discretion, to the prevailing party in a civil action.¹ The appellant city argues that I.C. § 12-121 does not, however, provide that attorney fees shall be taxed as costs or that an attorney fee award may be made against the state, county, or municipality. Attorney fees may in a proper case be asserted against a county or municipality pursuant to I.C. § 12-121. See Merris v. Ada Comity, 100 Idaho 59, 593 P.2d 394 (1979). An attorney fee award made pursuant to I.C. § 12-121 may properly be included as costs. Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978); Futrell v. Martin, 100 Idaho 473, 600 P.2d 777 (1979).

Affirmed. Costs are awarded to respondent. No attorney fees allowed on appeal.

DONALDSON, C. J., and SHEPARD and McFADDEN, JJ., concur.

1 . Judgment in this case was entered prior to this Court’s adoption of I.R.C.P. 54(e) which became effective March 1, 1979, and which governs the award of attorney fees made pursuant to I.C. § 12-121.