Kelley v. Byington

• Decision Date: 29 November 1947
• Citation: 206 S.W.2d 409,185 Tenn. 421
• Parties: KELLEY v. BYINGTON et al.
• Court: Tennessee Supreme Court

206 S.W.2d 409

185 Tenn. 421

KELLEY v. BYINGTON et al.

Supreme Court of Tennessee.

November 29, 1947

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by W. W. Kelley against Photen Byington, clerk of the Court of General Sessions of Knox County, and the Attorney General for a declaratory judgment as to the validity of a statute relating to the prepayment of costs in such Court of General Sessions. Decree for plaintiff and defendants appeal.

Affirmed.

John L. Whitaker, Martin Southern, W. Clyde Buhl and R. R. Kramer, all of Knoxville, for complainant.

Clyde W. Key, of Knoxville, for defendants.

PREWITT Justice.

This is a suit under the Declaratory Judgments Act Code 1932, § 8835 et seq., instituted by a prospective litigant in the Court of General Sessions of Knox County against the clerk of the court, and the Attorney General of Tennessee, to test the constitutionality of section 4, Chapter 148, of the Private Acts of 1947. The defendant clerk demurred to the bill, which the chancellor overruled, thereby holding the Act invalid. Section 4 of the Act in question reads as follows:

'Be it further enacted, That before the commencement of any civil action, the plaintiff shall pay to the Clerk of said Court of General Sessions an amount sufficient to cover the fees for the issuance of the original warrant or summons writs of attachment, replevin or unlawful and forcible entry and detainer, rendition of judgment, docketing and fees of the officers serving such process, such costs to be estimated by the Clerk of said Court. Before the issuance of any execution, or other process, or the performance of any additional service in the case, the plaintiff or the party seeking the same shall pay to the Clerk the fees therefor. Such payment made for Court costs shall be credited at once to the party paying the same and such costs paid as compensation for the service of officers shall become payable to them only after the return of process has been made. When, and in the event such costs are collected from the defendant, the plaintiff or the party entitled thereto, shall thereupon be refunded the same; provided, however, that any resident of this State, who is eligible to take and subscribe the oath for poor persons, may, upon taking and filing such oath, commence and prosecute an action without prepayment of costs.'

It will thus be seen that the amendatory Act in question requires individuals when instituting suits in the Court of General Sessions of Knox County to pay in advance the costs which will be incurred in such suits, when individuals may institute similar suits in like jurisdiction in any other county of the State without prepayment of costs. In other words, does the Legislature have the power to prohibit individuals from instituting suits in Knox County upon giving security for costs, when the right is given to the same or any other individual to institute suits in courts of like jurisdiction in any other county of the State upon the giving of such security?

Article 11, section 8, of the State Constitution reads in part as follows: 'The Legislature shall have no power to suspend any general law for the benefit of any particular individual nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions, other than such as may be, by the same law, extended to any member of the community who may be able to bring himself within the provisions of such law.'

The general law upon the subject of security for costs in instituting a suit is found in sections 8650 and 9075 of the 1932 Code. Section 8650 reads as follows: 'The justice may, and the clerk shall, before issuing the summons or other leading process, require the plaintiff to enter into bond, with sufficient surety, conditioned to prosecute his suit with effect, or to pay such costs and damages as may be awarded against him by the court having cognizance thereof, unless the plaintiff sue in forma pauperis.'

Section 9075 provides: 'No leading process shall issue from any court without security being given by the party at whose instance the action is brought, for the successful prosecution of his action, and, in case of failure, for the payment of all costs and damages which may be awarded against him, unless in cases and instances specially excepted.'

Section 10157 of the Code relates to the institution of suits before a justice of the peace and provides: 'Before issuing original process in any civil action, the justice may require the plaintiff to give security for the prosecution of the action, or, if he is a resident citizen of this state, take the oath entitling him to sue without security.'

The general law of this State provides that suits may be instituted and process issued upon the giving of security by the party at whose instance the action is brought, and the requirement for the prepayment of costs as specified in the Act here involved is contrary to the general law of this State.

In State ex rel. v. Hamilton County, 170 Tenn. 371, 95 S.W.2d 618, the validity of the statute which fixed minimum salaries for teachers in Hamilton County was attacked as being in conflict with the general law. Mr. Chief Justice Green, speaking for the Court, said, 170 Tenn. at pages 375, 376, 95 S.W.2d at page 619: '* * * Under the general law, by particular language, the counties of the state are made free to contract with their teachers as to compensation. Such is the general policy of the state, and it cannot be set aside as to one county unless such discrimination may be justified by some reason.'

Again, in Town of McMinnville v. Curtis et al., 183 Tenn. 442, 448, 192 S.W.2d 998, 1000, the Court, speaking through Mr. Justice Tomlinson, said 'These cases are not in the slightest in conflict with the well settled law that the legislature may constitutionally enact a special act affecting one particular county or municipality alone in its political or governmental capacity, provided such special act is not contrary to the provisions of a general law,...