Ives v. Supervisors of Jefferson County

By the Court, Cole, J. As we understand the position of respondent’s counsel, the only ground for claiming that the county is liable for the costs is, that section 77, chap. 133, R. S., imposes that liability. That section provides that when any prosecution instituted in the name of this state, for breaking any law of this state, shall fail, or where the defendant shall prove insolvent, or escape or be unable to pay the fees when convicted, the fees shall be paid out of the county treasury, unless otherwise ordered by the court. This provision obviously relates to purely criminal cases, and not to causes which, though in form criminal, yet are really civil actions. Most actions to recover a penalty or forfeiture are in the name of the state and for a violation of some law. Yet these are not, as a general thing, “ prosecutions ”. within the meaning of section 77. They are civil actions, so denominated and described by chap. 155, R. S. We have already decided that an action to recover the penalty or forfeiture given by section 7, chap. 175, Laws of 1860, was in its nature a civil action. State v. Ives, 15 Wis., 445. But it is not a criminal prosecution where the county becomes liable to pay the fees when the suit fails. This being so, the charge of the circuit court, that the county [169] was liable for tbe full amount of costs in tbe cases of tbe State v. Ives and State v. Goodrich, was erroneous. It is true that chap. 175, Laws of 1860, declares that all fines and forfeitures imposed as a penalty for a violation of any of its provisions shall be recoverable on a presentation by a complaint before a justice of tbe peace, and that tbe prosecution shall be in tbe name of tbe state of Wisconsin. Section 13. But notwithstanding this language, we have no doubt of tbe correctness of tbe decision in State v. Ives, in bolding tbe action civil in its character. And furthermore, it would obviously be unjust to bold tbe county liable for tbe costs in those cases where tbe damages recovered go into tbe treasury of tbe town, city or village where tbe dog is kept, and tbe county can have no voice in controlling tbe suit. Such town, city or village is the real party in interest. Whether chapter 175 renders them liable for costs when tbe suit fails, or whether they can be held liable upon general principles of law, is not a question before us at this time. We have only to decide whether tbe county is liable to pay tbe costs by virtue of section 77, chap. 133, above referred to. We are clearly of tbe opinion that it is not, for tbe reason already given. Tbe judgment of tbe circuit court is reversed, and a new trial ordered.