In re Lee

• Decision Date: 02 October 1917
• Docket Number: Case Number: 9182
• Citation: 1917 OK 458,64 Okla. 310,168 P. 53
• Parties: In re LEE.
• Court: Oklahoma Supreme Court

1917 OK 458

168 P. 53

64 Okla. 310

In re LEE.

Case Number: 9182

Supreme Court of Oklahoma

Decided: October 2, 1917

Syllabus

¶0 1. Constitutional Law--Denial of Justice--Docket Fees--Statute--"Sale or Denial of Justice and Right."

Section 5, ch. 87, Session Laws 1915, imposing a docket fee of $ 25 in each cause filed in the Supreme Court, to be collected and recoverable as other costs, and providing for an advance payment to the clerk of $ 40, is not a sale or denial of justice and right within the meaning of section 6, art. 2, of the Constitution (Williams'', sec. 14).

2. Statutes--Subject and Title--Constitutional Provisions. Chapter 87, Session Laws 1915, does not embrace more than one subject within the meaning of section 57, art. 5, of the Constitution (Williams'', sec 147).

3. Statutes--Amendment--Constitutional Provisions.

Section 5, ch. 87, Session Laws 1915, is not in conflict with that portion of section 57, art. 5, of the Constitution (Williams'', sec. 147), which declares that: "No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length."

4. Statutes--House of Representatives--Revenue Bill--Constitutional Provisions--"Bill for Raising Revenue."

Chapter 87, Session Laws 1915, is not a bill for raising revenue, which, under section 33, art. 5, of the Constitution (Williams'', sec. 95), must originate in the House of Representatives.

Original application by John W. Lee for a writ of mandamus to William M. Franklin, as Clerk of the Supreme Court of the State of Oklahoma. Denied.

Sharp, C. J., and Brett, J., dissenting.

E. G. McAdams and Norman R. Haskell, for petitioner.

S. P. Freeling, Atty. Gen., and John B. Harrison, Asst. Atty. Gen., for respondent.

MILEY, J.

¶1 The only question necessary to the determination of this case is whether that portion of section 5, ch. 87, Session Laws 1915, p. 135, providing that a docket fee of $ 25 shall be taxed, collected, and recoverable as other costs in each case filed in the Supreme Court, and requiring an advance payment to the clerk of $ 40, is invalid.

¶2 By chapter 97, Session Laws 1913, p. 161, salaries were prescribed to be paid by the state to the clerk of the Supreme Court and the Criminal Court of Appeals and his assistants. The act also prescribed a schedule of fees to be charged and collected by the clerk for the use and benefit of the state for services rendered to litigants in causes instituted in these courts, among other fees so prescribed being:

"For filing, indexing and docketing each cause, $ 3.00."

¶3 It was also therein enacted (section 7) that:

"No cause shall be docketed nor process issued thereon (except where proper affidavit as is now provided by law, or in criminal causes in [which?] the state of Oklahoma is appellant) until the plaintiff in error or appellant shall pay the clerk $ 15.00 advance fees; and when said sum shall have been exhausted by proper charges in said cause, the clerk shall require the plaintiff in error or appellant to make further deposit of a sufficient sum to cover all additional costs that may accrue in said cause."

¶4 This payment of $ 15 was evidently intended as a deposit for payment of fees, for which the plaintiff in error or appellant should become liable, any unearned portion thereof remaining at the termination of the cause to be refunded to the depositor, the affidavit referred to being that of inability to make the deposit by reason of poverty, in which case none is required.

¶5 By chapter 87, Session Laws 1915, p. 135, entitled:

"An act authorizing the Governor to appoint, with the approval of the Supreme Court, nine Supreme Court Commissioners to assist the Supreme Court; to designate not more than nine district judges to act as Supreme Court Commissioners; fixing the term of office and compensation; prescribing the duties of and providing office rooms and clerical assistance for such Commissioners; providing for a docket fee in all cases filed in the Supreme Court; and declaring an emergency"

¶6 --it is provided in section 5 as follows:

"In each cause hereafter filed in the Supreme Court there shall be taxed in lieu of the fee now provided for filing, indexing and docketing each cause, a docket fee of $ 25.00, which shall be collected and recoverable as other costs. The advance payment to the clerk shall be $ 40.00 instead of $ 15.00 as now provided."

¶7 Construing the foregoing sections together, it appears that upon a cause being filed in this court the party filing same becomes liable to pay to the state a fee of $ 25, the same to be deducted by the clerk from the deposit, if any, of $ 40 made at the commencement of the proceeding, and paid by him into the state treasury at the time of making his next monthly report (section 4, ch. 97, Session Laws 1915, as amended by section 7, ch. 238, Session Laws 1915, p. 563); this fee being collected and paid into the state treasury just as are other fees prescribed by law; for example, fees for issuing summons in error, filing briefs, and the like. While these fees are paid in the first instance by the plaintiff in error, provision is made by section 5261, Rev. Laws 1910, by which he, in the event the judgment is reversed, shall recover of the other party his costs, which, of course, include such fees paid by him to the clerk for the use and benefit of the state. No complaint is made of any of the fees prescribed by law to be paid to the state in causes pending in this court, except that of the docket fee of $ 25.

¶8 It is first argued that to exact this fee is to sell right and justice, contrary to Section 6, art. 2, of the Constitution (Williams'', sec. 14), which declares:

"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong, and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

¶9 The section of the Bill of Rights is not entirely peculiar to our state Constitution. With the exception of the addition of certain elements not material here, a declaration of similar import forms a part of the present constitutions of the great majority of the states of the Union, and was contained in the earliest constitutions of many of the older states. But it is more ancient than any of these. It originated with Magna Charta, forming part of that which has been said to be by far the most important article thereof. The declaration there read, according to one of the generally accepted English renditions:

"We will sell to no man, we will not deny or defer to any man, either justice or right."

¶10 Sir Edward Coke (Coke''s Institutes, part 2, p. 55) explains this pledge thus:

"This is spoken in the person of the King, who in judgment of law, in all his courts of justice is present, and repeating these words, ''Nulli vendemus,'' etc. And therefore every subject of this realm, for injury done to him in bonis, terris, vel persona (goods, lands, or person) by any other subject * * * may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay."

¶11 While the idea originated with Magna Charta, it seems that Coke''s explanation is the source of much of the phraseology in which the guaranty is expressed in many of the present-day state Constitutions. In determining what is meant by administering right and justice without sale or denial, we should seek the aid of the history of the provision. English jurists and commentators are not entirely agreed either as to the evils complained of by the barons, or the extent of the reform promised by this article of Magna Charta. Some writers have probably exaggerated both, and it is perhaps now impossible to state either with precision. In his History of the Exchequer Madox says:

"Some men used to pay fines to have or obtain justice or right; others, to have their right or their proceedings or judgment speeded; others, for stopping or delaying of proceedings at law; and others were obliged to pay great and excessive fines (viz. a fourth part, a third part, or a half of the debt sued for) to obtain justice and right, according to their several cases, so that the king seemed to sell justice and right to some and to delay or deny it to others. Against these mischiefs a remedy was provided by a clause in the great charters of liberties, made by King John and King Henry III. That clause in each of those charters runs in the same or consonant words, which are these: ''Nulli vendemus, nulli negabimus, ant differemus rectum ant justiciam.''"

¶12 The extent of the remedy thus afforded seems to us to have been well stated by the Supreme Court of Rhode Island as follows:

"The better opinion is that it was designed to abolish, not fixed fees, prescribed for the purposes of revenue, but the fines which were anciently paid to expedite or delay law proceedings and procure favor." Perce

v.

Hallett, 13 R.I. 363, 364.

¶13 See, also, Harrison v. Willis, 7 Heisk. 35, 19 Am. Rep. 604; Swann v. Kidd, 79 Ala. 431; Northern Counties Inv. Co. v. Sears, 30 Ore. 388, 41 P. 931, 35 L. R. A. 188; Christianson v. Pioneer Furn. Co., 101 Wis. 343, 77 N.W. 174, 917; Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909; Henderson v. Stout, 137 Ind. 552. 36 N.E. 257, 24 L. R. A. 469.

¶14 In one of the earliest decisions of the courts of this country, construing a similar provision to include the means of obtaining justice as well as the end, and that the means includes original and judicial process, it was said that "original process must issue without price, except that which the law fixes," and also that "the judges where the causes depend must issue the proper judicial process, without fee or reward, except that fixed by law." Townsend v. Townsend,...