Robert Kinney v. Plymouth Rock Squab Company

Decision Date18 January 1915
Citation35 S.Ct. 236,59 L.Ed. 457,236 U.S. 43
PartiesROBERT D. KINNEY, Plff. In Err., v. PLYMOUTH ROCK SQUAB COMPANY and International Trust Company and Elmer C. Rice, Trustees. No. ___
CourtU.S. Supreme Court

Mr. Robert D. Kinney, in propria persona, for the petition.

Mr. Chief Justice White delivered the opinion of the court:

Prosecuting a writ of error in this case, allowed by a circuit judge, the plaintiff in error asks to be permitted to docket the cause and conduct the proceedings in forma pauperis chap. 209, 27 Stat. at L. p. 252, as amended by the act of June 25, 1910, chap. 435, 36 Stat. at L. 866, Comp. Stat. 1913, § 1626. We summarize their provisions, reproducing, however, in full, the 1st section as amended by the act of 1910, as that was the only portion of the original act changed by the amendment, printing in italics the provisions added, and putting in brackets, with a line of erasure, the words omitted in the amendment.

'Sec. 1. That any citizen of the United States, entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute or defend to conclusion any [such] suit or action, or a writ of error, or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that, in the opinion of the court, such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court, or give security therefor, before or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action or of such writ of error or appeal, [which he is about to commence] or to give security for the same, and that he believes that he is entitled to the redress he seeks by such suit or action or writ of error or appeal, and setting forth briefly the nature of his alleged cause of action or appeal.'

The 2d section provides for permission to proceed as a poor person after commencement of suit. The 3d governs the conduct of court officers in cases coming under the statute. The 4th authorizes the appointment by the court of an attorney to represent poor persons 'if it deems the cause worthy of a trial,' and empowers the court at any stage after permitting proceedings as a poor person to dismiss the suit 'if it be made to appear that the allega- tion of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious.' The 5th and last section points out the manner of entering judgment concerning costs in cases under the statute.

Prior to the amendment of 1910, on the face of the statute three things were certain: (a) that the statute imposed no imperative duty to grant a request to proceed as a poor person, but merely conferred authority to do so when the fact of poverty was established and the case was found not to be frivolous; that is, was considered to be sufficiently meritorious to justify the allowance of the request; (b) that there was no power to grant such a request when made by a defendant; and (c) that there was also no authority to allow a party to proceed as a poor person in appellate proceedings in this court or the circuit courts of appeals. Bradford v. Southern R. Co. 195 U. S. 243, 49 L. ed. 178, 25 Sup. Ct. Rep. 55. Clarifying the 1st section as amended by these considerations, it becomes clear that the sole change operated by the amendment was to bring defendants within the statute, and to extend its provisions so as to embrace, first, proceedings on application for the allowance of a writ of error or appeal to this court and the circuit court of appeals, and second, the appellate proceedings in such courts. This being true, it is clear that as to the new subjects, the allowance of the right in those cases was made to depend upon the exercise of the same discretion as to the meritorious character of the cause to the same extent provided under the statute before amendment. That is to say, there is no ground for a contention that at one and the same time the statute brought certain proceedings within its scope and yet exempted them from its operation. Indeed, this conclusion is not alone sustained by the implication resulting from the fact that the safeguards provided for the exercise of the authority found in the statute as originally enacted were not changed by the amendment, but further plainly results from the express provisions of the amended section manifesting the purpose to subject the granting of the right in both the new instances provided for, to the exercise of the judicial discretion to determine the poverty and good faith of the applicant and the meritorious character of the cause in which the relief was asked.

Under the assumption that the affidavit as to poverty is sufficient, we come to the merits, in other respects, of the application. There is a failure, however, to comply with the requirement that a statement be made, briefly setting forth the cause of action relied upon, since the petition only refers to an assignment of errors which it is said will...

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