#### Midland Valley Railroad Company v. State.

Opinion delivered February 26, 1912.

1. Railroads — statutory penalty — nature op proceedings. — A proceeding by the prosecuting attorney under Kirby’s Digest, section 6595, to recover the statutory penalty for failure to ring a bell or sound a whistle at a railroad crossing is a civil and not a criminal proceeding. (Page 432.)

2. Same — recovery op penalty — pee op prosecuting attorney.— Where a prosecuting attorney recovers the penalty provided by Kirby’s Digest, section 6595, for failure of a railroad company to give either of the required signals at a public crossing, he is entitled to afee of $5 to be taxed as costs in the case, under section 3488, Kirby’s Digest, allowing him a fee of $5 “for each judgment on complaint or information, or otherwise, in the name of the State or of any county.”' (Page 432.)

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon, Judge;

affirmed with modification.

Ira D. Oglesby, for appellant.

The prosecuting attorney is not entitled to a fee of $10. Kirby’s Digest, § § 6595, 3488. If entitled to any fee, it would be $5, under § 3488, Kirby’s Digest.

No attorney for appellee.

Frauenthal, J.

This is an appeal from a judgment denying appellant’s motion to retax the costs in certain suits and to strike therefrom the fee of $10 for the prosecuting attorney which the clerk had taxed against it in each case. Four *432suits were instituted against appellant in the name of the State for the benefit of the Greenwood District of Sebastian County, to recover the penalty prescribed by section 6595 of Kirby’s Digest for a failure to ring the bell or sound the whistle on its locomotive when approaching road crossings. In each of the cases judgment was rendered against appellant for a recovery of the penalty, and in each case the clerk taxed as part of the costs a fee of $10 for the prosecuting attorney. By section 6595 of Kirby’s Digest it is provided: “A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of $200 for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informant and the other one-half to the county; and the corporation shall also be liable for all damages which shall be sustained by reason of such neglect.” By section 6599 of Kirby’s Digest it is provided that all penalties imposed by said statute may be sued for by the prosecuting attorney in the name of the State.

It has been repeatedly held by this court that the violation of the provisions of the above statute is not a criminal offense, and that the proceedings instituted for the recovery of the penalty thereon provided for are civil in their nature and not criminal. A suit for the recovery of this penalty is a civil action, governed by the rules which are applicable to civil procedure. Railway Company v. State, 55 Ark. 200; Railway Company v. State, 56 Ark. 166; Railway Company v. State, 59 Ark. 165; Kansas City, S. & M. Rd. Co. v. State, 63 Ark. 134. By section 3488 of Kirby’s Digest it is provided that the prosecuting attorney shall be allowed a fee of $10, to be taxed as costs, "‘for each conviction on indictment, presentment or information for misdemeanor or breach of the peace.” This necessarily refers to a judgment or conviction had upon a charge for a criminal offense. The judgments rendered in the present suit against appellant were obtained upon complaints in the name of the State, and we are of opinion that the prosecuting attorney is entitled to a fee of $5, to be taxed as costs in each *433case, under said section 3488 of Kirby’s Digest, which provides that the prosecuting attorney is entitled to a fee of $5 “for each judgment on complaint and information, or otherwise, in the name of the State or of any county.” State v. Jackson, 46 Ark. 137; Pearce v. State, 55 Ark. 387. The judgment will be modified so as to tax as costs a fee of $5 in behalf of the prosecuting attorney in each of said cases, and, as modified, the judgment is affirmed.