45 W. Va. 44 | W. Va. | 1898
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 favor 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 favor on aquittal 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 wmrd “civil,” as recognized by the laws of this State, beginning with section 3, Art. VIII, of the Constitution, defining the powers of this
In its governmental capacity, a municipality is strictly a branch of the State government, within the extent of its limitations, both as to territory and powers granted. And in the discharge of their duties, governmental and discretionary, its officers are public officers, for whose acts the municipality is in no wise liable. Gibson v. City of Huntington, 38 W. Va., 177, (18 S. E. 447); Brown’s Adm’r v. Town of Guyandotte, 34 W. Va., 299, (12 S. E. 707); Thomas v. Town of Grafton, 34 W. Va., 282, (12 S. E. 478); Mendel v. Wheeling, 28 W. Va., 233; Orme v. City of Richmond, 79 Va., 86; City of Richmond v. Long's Adm'rs, 17 Grat., 375; Barnes v. District of Columbia, 91 U. S., 540. The en
The palpable error of this Court in allowing costs against a town, as in the case of Ridgway v. Hinton, 25 W. Va., when they should have been awarded the town as not responsible therefor in any event, — for it was neither guilty of the error complained of nor liable for costsin such cases, —does not furnish a binding rule on this Court or any in-inferior tribunal. When the attention of this Court is called to such mistakes, — the result of mere oversight, — it feels irresistibly impelled to correct the same forthwith, that the future baneful effects thereof may be prevented. The judgment of the circuit court being without law to sustain it, prohibition is the proper remedy to prevent its execution. Norfolk & W. R. Co. v. Pinnacle Coal Co., 44 W. Va., 574, (30 S. E. 196); Wilkinson v. Hoke, 39 W. Va., 559, 403, (19 S. E. 520); Manufacturing Co. v. Carroll, 30 W. Va., 532, (4 S. E. 782); West v. Ferguson, 16 Grat., 270. Therefore the motion to quash is over-ruled, and a prohibition is awarded in accordance with the prayer of the petitioner.
Writ Awarded.