Harbison v. George

• Decision Date: 22 February 1929
• Citation: 228 Ky. 168
• Parties: Harbison, Clerk of Circuit Court, v. George.
• Court: United States State Supreme Court — District of Kentucky

Page 168

228 Ky. 168

Harbison, Clerk of Circuit Court, v. George.

Court of Appeals of Kentucky.

Decided February 22, 1929.

1. Costs. — Statutes requiring payment in advance of fees allowed by law and incurred pending litigation do not contravene constitutionally guaranteed rights.

2. Constitutional Law. — Acts Ky. 1928, c. 110, requiring person commencing action to deposit $5 as a credit on costs accruing in such action, held not unreasonable nor violative of Constitution Ky., sec. 14, or Constitution U.S. Amends. 5, 14.

3. Constitutional Law. — Doubts as to constitutionality of statute should always be resolved in favor of constitutionality.

4. Statutes. — Courts should seek to ascertain and carry out intention of Legislature and to give effect thereto.

5. Statutes. — Acts 1928, c. 110, entitled "An act to amend and reenact section one thousand seven hundred and twenty of the Kentucky Statutes, Carroll's Edition, one thousand nine hundred and twenty-two, relating to fees," which requires deposit on commencement of action to be credited on costs, held not violative of Constitution. sec. 51, as relating to more than one subject, namely, fees and costs.

Appeal from Shelby Circuit Court.

ROBERT MATTHEWS and R.F. PEAK for appellant.

RONALD C. OLDHAM and DAVID SESSMER for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

On this appeal the constitutionality of chapter 110, Acts Gen. Assem. 1928, is questioned. The title of the act reads: "An act to amend and re-enact section one thousand seven hundred and twenty of the Kentucky Statutes, Carroll's edition, one thousand nine hundred and twenty-two, relating to fees." As re-enacted, the act contains all of the provisions of the old act, with this provision added: "That the clerks of the various circuit courts of this commonwealth shall collect the sum of five dollars ($5.00) on each original action or suit, commencing with original process, in their respective courts. Said sum to be collected when such action or suit is filed and applied as a credit on the costs accruing in such action or suit, and shall not affect their fees now prescribed by law."

The appellee, Charles George, offered to file in the Shelby circuit court a petition in which he sought to recover $256.64 on a note, and appellant, who was the circuit clerk, refused to file the petition, except upon the payment of $5 as provided for in the 1928 act. George then brought this action against the clerk, in which he asked for an injunction to compel the clerk to file the petition referred to. The lower court overruled a demurrer to the petition and entered a judgment granting the relief sought.

It is insisted by the appellee that this judgment should be affirmed, because the 1928 act contravenes section 14 of the Kentucky Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States, and also section 51 of the Constitution of Kentucky. Section 14 of our Constitution provides that "all courts shall be open and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." A history of the provision that right and justice shall be administered without sale, denial, or delay dates back to the days of the Magna Charta. It was then customary for officers to exact fines as the price of administering justice which constituted a species of bribery. They were arbitrary exactions, that went to the officers, and in no way similar to exactions for legitimate expenses of litigation. It was to correct such abuses, among others, that induced the barons of England to wrest from King John the Magna Charta. The right thus obtained has been preserved in practically all state Constitutions.

Provisions in state statutes for the payment in advance of fees allowed by law, and incurred pending the litigation, do not contravene the rights guaranteed by such a constitutional provision. Such statutes have been sustained by practically all of the courts in which their validity has been attacked. A collection of cases holding that such acts are valid will be found in the note to In re Lee, L.R.A. 1918B, 150. Other cases holding to the same effect are Wortman v. Kleinschmidt, 12 Mont. 316, 30 P. 280; Malin v. Lamoure County, 27 N.D. 140, 145 N. W. 582, 50 L.R.A. (N.S.) 997, Ann. Cas. 1916C, 207; Marshall v. Holland, 168 Ark. 449, 270 S.W. 609; State v. Laramore, 175 Ind. 478, 94 N.E. 761, Ann. Cas. 1913B, 1296.

The deposit required by the 1928 act is not unreasonable or oppressive, and, if a litigant is unable to pay it, he...