(dissenting). The statute under which this proceeding was begun and prosecuted to a conclusion contains no authority for the adjudication of costs. The statute merely provides that the county court may, upon a petition of a majority of the adult inhabitants residing within three miles of any school house, etc., make .an order prohibiting the sale of intoxicants of any kind within that radius for a period of two years, “and until upon .a petition of a majority of the adult inhabitants of such territory the court shall make an order nullifying and revoking said former order.” Kirby’s Digest, sec. 5129. TMs court, in construing that statute, has always held that “the proceeding contemplated by the statute is not in the nature of a suit between parties. It is a police proceeding for the better regulation of the internal affairs of counties, for the preservation of morals, and protection of the peace of the citizens.” Williams v. Citizens, 40 Ark. 290; Bailey v. West, 104 Ark. 432.
Chief Justice Ooekrill, in delivering the opinion of this court in Wilson v. Thompson, 56 Ark. 110, said, in construing this statute, “that the duties imposed upon the county court are administrative and executive rather than judicial.”
There is, therefore, no authority for the rendition of a judgment for costs in a proceeding of this kind, for the general statute giving authority to render judgment for costs (Kirby’s Digest, § § 965, 966) only applies to civil actions between parties; arid since it has been decided that this proceeding is not a civil action, it .follows that there is no authority for rendering judgment for the recovery of costs.
“The right to recover costs,” said Judge Riddick, speaking for the court in Wilson v. Fussell, 60 Ark. 194, “did not exist at common law. It rests upon statute only, and it is to the statute we must look for the authority to recover costs in any given ease.”
Again, in the case of Buckley v. Williams, 84 Ark. 187, we said: “It (the cost of suit) is a liability created by statute, and, in the absence of the statute allowing same there could bé no judgment rendered in favor of ¡a defendant against a plaintiff, where the latter fails in his suit.”
The rule has been followed by this court in several recent cases. Buchanan v. Parham, 95 Ark. 81; Burton v. Chicago Mill & Lbr. Co., 106 Ark. 297; Letchworth v. Flinn, 108 Ark. 301.
The majority seem to treat this question as being decided in accordance with their views in the case of Wilson v. Thompson, supra. It is true that the opinion in that case shows that the appellant was awarded judgment here for the costs in both courts. It is quite clear that the decision was correct insofar as it awarded judgment for the costs in this court, inasmuch as the judgment .appealed from was reversed, and the statute provides that on appeal to the .Supreme 'Court from a judgment of the circuit court, if the judgment be reversed, the appellant shall recover his costs. Kirby’s Digest, § 970. But the award of costs in the lower court was, I think, clearly an inadvertence, for the question does not appear to have been raised and it was not discussed by the learned judge who wrote the opinion, with the clearness which characterized his opinions. I. do not think that the case ought to be treated as an authority to that extent, for it is clearly contrary to all the decisions of this court on the subject since that time.
Nor is the decision in this case when here on the former appeal decisive of the question now before us. We said in the opinion that there was nothing to be determined on the appeal but the question of the liability for costs, but it was not necessary to decide when the case wasTiere before whether or not there was any liability for costs, inasmuch as we reached the conclusion that even if there was a liability for costs that would not justify the appeal. We merely dismissed the appeal because there was nothing 'before us which called for a review of the proceedings below.
I dissent, therefore, from the conclusion reached by the majority in this case. Mr. Justice Kirby concurs in the dissent.