| Ill. App. Ct. | Mar 6, 1893
Opinion of the Court, the
It is provided by the latter clause of Sec. 40, Ch. 53, B,. S., that “ in all criminal cases, where the fees can not be collected of the party convicted, or where the prosecution fails, the county board may, in its discretion, direct that the cost of the prosecution, or so much thereof as shall seem just and equitable, shall be paid out of the county treasury, provided that the costs in criminal and quasi criminal prosecutions for the violation of an ordinance of an incorporated city or town, where the provisions of the charters of such towns or cities do not prohibit the payment of such costs, may be paid by such city or town, in the discretion of the city council or board of trustees of such incorporated cities or towns.”
It is suggested this provision is not valid, because the subject-matter thereof is not embraced in the title of the act. Mo argument is presented in support of the suggestion. If there were really a question as to the constitutionality of the enactment, we should dismiss the appeal for want of jurisdiction.
As was said in St. Louis Transfer Co. v. Canty, 103 Ill. 423" date_filed="1882-06-21" court="Ill." case_name="St. Louis Transfer Co. v. Canty">103 Ill. 423, there must be something more than the mere suggestion that a constitutional question is involved.
It must appear that there is substantial ground for such a question; otherwise, every case which depends upon the statutes might be dismissed from this court upon such suggestion. So also of the suggestion that Section 40 has been impliedly repealed by the latter expression of the legislative will, in Ssss. 8 and 17, Oh. 33. These sections were in the Eevised Statutes of 1845, Sees. 4 and 14, Oh. 26, and were merely re-enacted in the revision of 1874. They clearly do not repeal directly, or by implication, the provisions of said Sec. 40, but all these are to be considered and construed together.
In Town of Nokomis v. Harkey, 31 Ill. App. 107" date_filed="1889-01-21" court="Ill. App. Ct." case_name="Town of Nokomis v. Harkey">31 Ill. App. 107, it was held that in a prosecution under the town ordinance, begun before a justice of the peace, and removed, by appeal, to the Circuit Court, the town was not liable for cost.
While the section referred to relates wholly to the fees of justices of the peace and police magistrates, so far as it fixes a scale of charges, yet if also contains a provision as to the fees of constables, jurors and witnesses in criminal cases, and then folloivs the clause above quoted. Counsel insist that this clause with its proviso relates only to proceedings before justices of the peace, or originating there and removed by appeal to courts of record, and that it can not be applied to original suits brought in courts of record. It is also urged that by the statute relating to costs, as the same is to be construed under Div. 5, Sec. 1, Ch. 131, a municipality suing to recover for a violation of its ordinances should be held for costs the same as any other plaintiff who may fail to recover. And it is argued that-, while by section 17 of the costs act, the people, the governor and the county are exempt from liability for cost, there is no such exemption provided for municipal corporations when seeking to enforce their ordinances.
Laws are to be construed according to their spirit, and not always according to their mere letter. The taxation of costs and recovery therefor depend upon the statute.
It is, of course, conceded that the sovereign power is not chargeable with costs, or liable to advance costs in order to obtain writs and service thereof. The city or town is a mere agency of the legislature for the purpose of enforcing local government, and is invested with power to enact and enforce ordinances on a great variety of subjects, thereby relieving the State from considerable burdens in respect to such matters. When the city or town is suing to enforce its ordinance, it is performing a public function jnst as the State is when prosecuting by indictment or information.
Now, considering all the sections referred to, and the nature of the prosecution by a city or town, it is, to say the least, a matter of grave doubt whether it was intended by section 40 to provide only for cases arising before justices of the peace.
The spirit and policy of the law would seem to include all “ criminal and quasi criminal prosecutions for the violation of ordinances,” as well those originally brought in courts of record, as those originating in the lower courts.
Again, the petition seeks to require the village to pay to the relator all the costs of the case.
While he has no interest in any except as to the amount due for his fees, he asks that the amount due the sheriff and the witnesses be also paid to him. He has no right to ask that anything beyond his fees should be paid to him. The village, if bound to pay, would certainly have the right to pay directly to parties to whom the money belongs.
The rule is familiar that in mandamus proceedings the relator must show a clear legal right to the relief prayed.
We are inclined to think the demurrer to the petition was propérly sustained, and the judgment of the Circuit Court will therefore be affirmed.