Hays v. C. C. & H. Min. & Mill. Co.

• Decision Date: 31 March 1910
• Citation: 126 S.W. 1051,227 Mo. 288
• Court: Missouri Supreme Court
• Parties: HAYS v. C. C. & H. MIN. & MILL. CO.

126 S.W. 1051

227 Mo. 288

HAYS v. C. C. & H. MIN. & MILL. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1910.

1. JURY (31) — RIGHT TO JURY TRIAL — STATUTES — FILING FEE FOR SUIT.

Laws 1901, p. 115 (Ann. St. 1906, § 3242 — 1), providing that in all counties which constitute, "or may hereafter constitute," a separate judicial circuit, with two judges of the circuit court, and having no criminal court, the circuit judge shall tax and collect a docket fee of $3 in each case filed in said court, to be collected at the filing of such case, and that such fee shall be taxed in favor of the party paying the same as other costs, and that the docket fee so collected shall be by the clerk reported to the county court and by him paid into the county treasury, is not violative of Const. art. 2, § 28 (Ann. St. 1906, p. 162), guaranteeing the right of trial by jury in certain cases.

2. CONSTITUTIONAL LAW (§ 317) — DUE PROCESS OF LAW — EXACTING DOCKET FEE.

Nor does such act violate Const. art. 2, § 30 (Ann. St. 1906, p. 166), prohibiting deprivation of property without due process of law.

3. STATUTES (§ 76) — LOCAL AND SPECIAL LAWS — EXACTION OF DOCKET FEE.

Such act is violative of Const. art. 4, § 53 (Ann. St. 1906, p. 198), prohibiting special and local laws when a general law can be made applicable, since the act is limited in its operation to all counties which constitute a special judicial circuit having two judges which could only apply at time of act to one county, and the fact that the statute uses the words "may hereafter constitute" a separate judicial district, etc., does not render it valid, since it is mere conjecture whether the Legislature would organize such a district.

Lamm, P. J., dissenting.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by W. H. Hays against the C. C. & H. Mining & Milling Company. From a judgment for plaintiff in the circuit court, on appeal from a justice's court, defendant appealed. Reversed, and cause remanded for new trial.

The only questions involved in this controversy are propositions of law. The respondent is not represented in this court, and, therefore, the cause was submitted upon the abstract of the record, statement of the cause, and brief of appellant. The statement of the cause made by counsel for appellant fairly presents the facts of the case, and sufficiently outlines the legal propositions involved to enable the court to grasp the case presented for determination, which is as follows: "Plaintiff commenced his action against defendant before a justice of the peace of Jasper county to recover a judgment of $75, which purpose he accomplished on December 12, 1906. On the same day defendant perfected its appeal to the circuit court, and on the next day the justice lodged his transcript in the office of the circuit clerk. The appeal was, therefore, returnable to the January term, 1907, of the circuit court. The defendant having failed to pay the so-called filing fee of $3 sought to be exacted by the act of the General Assembly (Laws 1901, p. 115 [Ann. St. 1906, § 3242 — 1]), the plaintiff on the fourth day of the January term of said court filed his motion to affirm the judgment of the said justice of the peace for the sole reason that defendant had not paid said fee of $3. To this motion of plaintiff defendant filed its countermotion, alleging, in opposition to said motion of plaintiff, the unconstitutionality of said act, in that it was in conflict with and repugnant to sections 10, 28, and 30 of article 2 of the Constitution of Missouri [Ann. St. 1906, pp. 132, 162, 166], which provides that our courts shall be open to every person, and that justice shall be administered without sale, that the right to trial by jury shall remain inviolate, and that no person shall be deprived of life, liberty, or property without due process of law; section 53 of article 4 [Ann. St. 1906, p. 198], which provides that the General Assembly shall not pass any local or special law in cases where a general law could be made applicable; sections 3 and 10 of article 10 [Ann. St. 1906, pp. 275, 283], which provide that taxes may be levied and collected for public purposes only, that they shall be uniform upon the same class of subjects within the territorial limits of the authority levying the same, and that they shall be levied and collected by general laws, and that the General Assembly shall not impose taxes upon counties, or the inhabitants thereof, for county purposes, but may by general laws vest in the corporate authorities power to assess and collect taxes for such purposes; and violates section 1 of article 14 of the amendments to the Constitution of the United States, which prohibits any state from making or enforcing any law which shall deprive any person of life, liberty, or property without due process of law, and from denying to any person within its territorial jurisdiction equal protection of the laws. Defendant also asked in its countermotion that the motion of plaintiff be stricken from the files and for naught held, and that the said cause be set down for trial. Defendant's countermotion was overruled, plaintiff's motion was sustained, to all of which defendant excepted, and judgment was rendered and entered by the circuit court affirming the judgment of said justice of the peace, and a motion was within four days thereafter filed by defendant to set aside this judgment, which was overruled, and defendant excepted, and thereupon an appeal was taken to this court. We do not question the right of the circuit court to affirm a judgment of a justice of the peace, where the appellant fails to pay the so-called filing fee on or before the second day of the return term of the appeal, if the act exacting the fee is valid."

The act of the Legislature before referred to reads as follows:

"Section 1. In all counties in this state which now constitute or may hereafter constitute a separate judicial circuit with two judges of the circuit court and having no criminal court, the circuit clerk shall tax and collect a docket fee of three dollars in each case filed in said court, which fee shall be collected at the time of filing such case, and shall be paid by the party instituting such suit or filing a transcript on certiorari or appeal. The amount of such docket fee shall be taxed in favor of the party paying the same as other costs in said case: Provided, that nothing in this act shall be construed to require the payment of said docket fee in any criminal proceeding or in prosecutions for a violation of any municipal ordinance; and provided further, that in suits for delinquent taxes, the prepayment of said docket fee shall not be required, but the same shall be taxed and collected as other costs in such cases.

"Sec. 2. The docket fee so collected shall be by said clerk reported to the county court of said county quarterly, and by him paid into the county treasury."

W. R. Robertson, for appellant.

WOODSON, J. (after stating the facts as above).

1. The first insistence of counsel for appellant is that this act of 1901, before set out, is violative of sections 10, 28, and 30 of article 2, section 53 of article 4, and sections 3 and 10 of article 10, of the Constitution of Missouri, which read as follows:

"Sec. 10. The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay."

"Sec. 28. The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law. Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill."

"Sec. 30. That no person shall be deprived of life, liberty or property without due process of law."

Section 53 of article 4, among other things, provides that: "In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and such shall be judicially determined, without regard to any legislative assertion on that subject."

Sections 3 and 10 of article 10 read as follows:

"Sec. 3. Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws."

"Sec. 10. The General Assembly shall not impose taxes upon counties, cities, town or municipal corporations or upon the inhabitants or property thereof, for county, city, town or municipal purposes but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes."

We will consider these constitutional questions in the order above suggested.

Counsel for appellant contends, in brief, that this act of 1901 seeks to fix a price which all litigants must pay who institute suits in the circuit court of Jasper county, in consideration for the right to sue, and to have their rights and interests adjudicated therein; all in violation of said section 10 of article 2, which provides that the courts of justice shall be open to all, where right and justice shall be administered without sale, etc. In other words, the act, in violation of the Constitution, closes the doors of courts of justice against litigants until the $3 mentioned in the act are paid to the clerk of the court for the privilege of bringing a suit and having it determined by the court of that county; or, to express the idea in another form, it is tantamount to a sale of justice, in violation of the Constitution of the state.

While the respondent, as before stated, is not represented in this...