I subscribe to the statement, if limited to the question before us for determination (otherwise it is dictum), "that costs are purely statutory and can only be awarded when the statute gives them." The courts did not at the common law have the power to award costs in criminal proceedings, and, in the absence of statutory authorization therefor, a judgment for costs cannot be rendered against a state in a criminal case.
"Costs in criminal proceedings are a creature of statute, and a court has no power to award them unless some statute has conferred it. By the common law, the public pays no costs. In England, the King does not, and the State stands in place of the King." U.S. ex rel. Phillips v. Gaines, 131 U.S. clxix Appendix. *Page 274
Immediately prior to our Revolution, costs were awarded pursuant to statutes to the victorious litigant in those cases in which the king was not a party. Those statutes are a part of the common law of this country.
"We often see it stated that costs are a creature of the statute; that costs were not given at common law. Wisconsin C.R.Co. v. Kneale, 79 Wis. 89, 95, 48 N.W. 248; Parsons on Costs, Sec. 1. That is liable to be misunderstood by not considering that the common law of England is not synonymous with the common law of this country. The former does not include the English statutes. As the only way costs were imposed before such statutes was by amercements for the benefit of the king, or possibly an addition to the verdict or the judgment of the jury (5 Encyc. Pl. Pr. 108), it is right to say costs were not allowed by the common law of England. But the principles of the English statutes amending the common law and existing at the time of our Revolution, suitable to our condition and in harmony with our Constitution and statutes, are a part of the common law of this country. Coburn v. Harvey, 18 Wis. 147; Kellogg v. C. N.W.R.Co., 26 Wis. 223, 7 Am. Rep. 69. As only the principle of the English statutes as to costs and security for costs has been regarded as thus made a part of the common law of this country, the idea that costs are regulated wholly by statute is of course true." Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909, 930.
"Thus much for judgments; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law that `victus victori in expensis condemnandus est' [he who loses the suit pays costs to his adversary]: though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, eo nomina, to the defendant in a real action, was the statute of Gloucester, 6 Edw. Ch. 1, c. 1, as did the statute of Marlerge, 52 Hen. III, c. 6, to the defendant in one particular case, relative to wardship in chivalry; though in reality costs were always considered and included in thequantum of damages in such actions where damages are given; and *Page 275 even now costs for the plaintiff are always entered on the roll as increase of damages by the court. But, because those damages were frequently inadequate to the plaintiff's expenses, the statute of Gloucester orders costs to be also added; and further directs, that the same rule shall hold place in all cases where the party is to recover damages. And therefore, in such actions where no damages were then recoverable (as in quare impedit, in which damages were not given till the statute of Westm. 2, 13 Edw. Ch. I), no costs are now allowed; unless they have been expressly given by some subsequent statute. The statute 3, Hen. VII, c. 10 was the first which allowed any costs on a writ of error. But no costs were allowed the defendant in any shape till the statutes 23 Hen. VIII, c. 15, 4 Jac. I, c. 3, 8 and 9 W. III, c. 11, 4 and 5 Ann, c. 16, which very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had in case he had recovered. These costs on both sides are taxed and moderated by the prothonotary, or other proper officer of the court." 3 Blackstone Comm. 399.
Whether the actions be regarded as criminal, quasi-criminal, or civil, the appeals should be dismissed. The right of the state to appeal in criminal cases is statutory. Where the defendant has been acquitted, as is the situation in the cases at bar, the state cannot maintain an appeal under the provisions of the statute (Rem. 1927 Sup., § 2183-1) allowing an appeal by the state. If the causes be treated as civil actions, it follows that the motions to dismiss should be sustained, as the original amount in controversy in each action does not exceed the sum of two hundred dollars. State v. Murrey, 30 Wash. 383,70 P. 971. In view, also, of our holding in State ex rel. Corbin v.Superior Court, 35 Wash. 201, 77 P. 33, I am compelled to agree that it is not material whether there is statutory or common law authority for allowance of costs to an acquitted defendant. *Page 276