
    [No. 5292.
    Decided March 23, 1905.]
    City of Spokane et al., Appellants, v. W. J. Smith, Respondent.
      
    
    Municipal Corporations — Ordinances—Costs in Police Court —Approval of Cost Bill by City Attorney. An ordinance designating a fund from which to pay the witnesses subpoenaed by the city in police court trials, is not invalid by reason of failing to provide for payment of the defendant’s witnesses, since mere silence as to defendant’s witnesses does not negative the liability therefor provided by statute.
    Same — Courts—Criminal Law — Violation of Ordinance— Criminal Proceeding. A proceeding in a police court for the violation of an ordinance, by which one is arrested and restrained of his liberty, is a criminal proceeding.
    Same — Appeal—Right to Jury Trial on Appeal Prom Police to Superior Court. Laws 1903, p. 34, providing for the right of appeal from the police court to the superior court, carries the right to a full trial by jury, and is not limited merely to review • for error.
    Municipal Corporations — Prosecution for Violation of Ordinances — Liability for Costs in Police Court — Acquittal of Defendant — Same Costs in Superior Court. Where defendant is acquitted in the police court upon a charge of violating an ordinance, the city is liable for all costs, under Bal. Code, § 1627, and when he appeals from a conviction to the superior court and is there acquitted, he is entitled to the same costs, especially in view of Bal. Code, § 7009, providing that no prisoner who is acquitted shall he liable for costs.
    Appeal and Error — Jurisdiction in Mandamus Irrespective of Amount in Controversy or Validity of Statute. Upon an appeal from an order made in a proceeding in the nature of mandamus, compelling a city attorney to approve a cost bill, the supreme court has jurisdiction irrespective of the amount in controversy, and although the validity of a statute is not involved.
    Municipal Corporations — Ordinances—Costs in Police Court —Approval of Cost Bill by City Attorney. Under an ordinance designating a fund from which to pay the witnesses subpoenaed by the city in police court trials, and providing for their payment upon the city attorney’s approval of the cost bill, without making any provision for the defendant’s costs, the city attorney is' not required to approve the defendant’s cost bill, although the city is liable therefor by statute, since the city’s liability is not dependent upon the approval of the city attorney as a condition precedent.
    Appeal from orders of the superior court for Spokane county, Richardson, J., entered April 7 and 11, 1904, requiring a city attorney to approve a cost bill for witness fees, and overruling the city’s objections to the jurisdiction.
    Reversed.
    
      E. O. Connor, for appellants.
    
      J. M. Simpson and R. L. Edmiston, for respondent.
    
      
       Reported in 79 Pac. 1125.
    
   Hadley, J.

This appeal involves a proceeding in the nature of mandamus against the corporation counsel of the city of Spokane and his assistant. Respondent was arrested and tried before the police court of said city, on the charge of permitting an animal to run at large within the city limits, in violation of a city ordinance. He was found guilty in the police court, and a fine was assessed against him. He appealed to the superior court where, by the verdict of a jury, he was found not guilty. A cost bill was thereupon filed for the fees and mileage of respondent’s witnesses who attended upon the trial in the superior court, the total amount claimed being $199.60. An application in the form of a motion, supported by affidavit, was then made to the court, to require the corporation counsel of the city to approve the cost bill. An order to show cause why he should not approve it was issued upon said application. Thereupon the corporation counsel appeared specially, and objected that the court had no jurisdiction or power in the premises. The objection was overruled, and thereafter the court entered an order to the effect that certain witnesses named are entitled to fees and mileage, amounting in the aggregate to $164.40, and that the several items are proper charges against the city. The order also required the corporation counsel and his assistant to forthwith approve the cost bill. This appeal is from said order.

The effort, to secure the approval of the corporation counsel, and also his refusal, are based upon the contentions of the respective parties as to the force of a certain city ordinance. The ordinance creates what is called a “police court fund” of said city, specifying what moneys shall be placed therein, and provides that witnesses and jurors in attendance upon the police court shall be paid from said fund. A section of the ordinance also provides as follows:

“Witnesses subpoenaed by the city, duly in attendance upon the superior court of this county, in cases upon appeal from the police court, may be paid from said sum upon a certificate from the county clerk containing the name and amounts due such witnesses, and upon same being approved by the corporation' counsel, or his assistant, said certificate .shall be filed with the city comptroller, who shall transmit same to the city council for final action.”

It will be seen that, by the terms of the ordinance, witnesses subpoenaed by the city, in cases appealed from the police court to the superior court, shall be paid from the above mentioned fund, when the amounts have been approved by the corporation counsel. The ordinance is absolutely silent as to any fund or method for payment of witnesses subpoenaed by the defendant, when the cause is appealed and tried in the superior court. Appellants’ contention is that, inasmuch as the ordinance does not, in terms, provide for the payment of defendant’s witness fees in the superior court, no fees are therefore recoverable against the city. But respondent, upon the other hand, contends that the fees are recoverable and assumes that, before they can be recovered, the items must receive the approval of the corporation counsel. We shall examine these respective contentions.

It does not necessarily follow from the mere fact that a certain fund is designated for the payment of the city’s own witnesses, and the manner of payment outlined, that the. city thereby meant to say that it would not in any manner become liable for the fees of a defendant’s witnesses on appeal. The section deals affirmatively with the payment of the city’s witnesses., and there is nothing to negative liability for the defendant’s witness fees, unless it is inferred from the mere fact of silence upon the subject. This is not sufficient to establish the city’s intention to declare that it is not liable, and we think the ordinance is, therefore, not invalid as conflicting with any statute, if there is any statute that makes the city liable, a subject which we shall next examine.

Appellants argue that charges for the violation of municipal ordinances are quasi criminal,, and not criminal causes. It is true, they have been often so designated, but where one is arrested and restrained of his liberty, the proceeding partakes of all the essential features of a criminal cause, and it would seem to be immaterial by what name it is called. The statute of 1903, p. 34, § 1, Session Laws of that year, specifies causes to come.before the police judge as both civil and criminal. The legislature must have intended to apply the term “criminal proceedings” to such as the one under which respondent was apprehended here. That statute provides that “all civil or criminal proceedings before such police judge and judgments rendered by him shall be subject to review in the superior court of the proper county by writ of review or appeal.” Appellants insist that the above authorizes nothing more than a review for mere error, and that it does not include the right of trial by jury. We think the term “appeal” is sufficient to carry the right to a full trial, inasmuch as the superior court is uot an appellate court for the mere review of error on appeal, hut reaches matters of error by the writ of review when error only is sought to be corrected. ' The case is, therefore, triable on appeal in the same manner as an ordinary criminal case.

Bal. Code, § 1627, should undoubtedly be held to make the city liable for all costs, when the defendant is acquitted in the police court, and, inasmuch as he is given the right to appeal from an adverse judgment in the police court, and to have further trial in the superior court, it logically follows that the same disposition as to costs shall be made upon his final acquittal on appeal. This view is also emphasized by Bal. Code, § 7009, which provides that no prisoner who is acquitted shall be liable for costs, hut that, in every such case, the defendant’s witnesses shall be paid as other costs in the case. It follows that the statutes of the state authorize the recovery of these costs from the city, and, if the ordinance were intended to provide otherwise it would be invalid.

The point is made on motion to dismiss this appeal, that the amount involved is not sufficient- to give this court jurisdiction. But we think the proceeding which led up to the order appealed from is in the nature of mandamus to compel the corporation counsel and his assistant to approve the cost bill, and that the order essentially performs the office of a writ of mandate. We therefore think this court has jurisdiction to determine the mandamus feature involved. We have discussed the chargeable character of these costs, because one portion of the order appealed from declared them .to be such, and for the further reason that appellants argue that, in doing so, the court held the above mentioned ordinance to be invalid, and that its validity is involved on this appeal; thus giving this court jurisdiction on that ground. The record, however, novdiere shows that the court intended to hold the ordinance invalid, and our argument above is intended to show that, while there is a statute making the costs recoverable from the city, yet the ordinance, by its terms, does not necessarily conflict with the statute so as to make the trial court’s holding involve the validity of the ordinance. The question of the validity of the ordinance is, therefore, not involved on the appeal, but that of the duty of the corporation counsel in the premises is before us.

The question is whether that officer is under the legal duty of formally approving this cost bill, so that he is subject to the peremptory order of the court, the equivalent of a mandate, requiring him to perform it. If, as an officer, he is under such duty as makes him subject to such a mandatory order, there must be soma statute or ordinance declaring the duty. The only declaration of a legislative character upon the subject which is urged by respondent is the ordinance we have discussed. That ordinance specifically makes it his duty to approve the items for witness fees due to witnesses subpoenaed by the city, and which alone are expressly made payable from the police court- fund. The ordinance specifies no other duty to be discharged by the corporation counsel. We have seen that these costs are made collectible by statute, but there is no statute or ordinance making their collectibility dependent upon the approval of the corporation counsel, as a condition precedent. There is, therefore, no reason why that officer should be required to appear to a court proceeding the avowed purpose of which is to require him to perform an alleged duty which does not exist by law. We there^•fore think the court erred in overruling the motion to dismiss the proceeding for want of jurisdiction. The'order appealed from is reversed, in so far as it relates to the alleged duty of the corporation counsel and his assistant in the premises, and the cause is remanded with instructions to- grant the motion to dismiss the proceeding as to said officers. The appellants shall recover costs of the appeal.

Mount, C. J., Dunbar., and Fullerton, JJ., concur.

Budkin, Boot, and Grow, JJ., took no part.  