Wright v. Beveridge

• Decision Date: 04 January 1927
• Citation: 251 P. 895,120 Or. 244
• Parties: WRIGHT v. BEVERIDGE, COUNTY CLERK.
• Court: Oregon Supreme Court

251 P. 895

120 Or. 244

WRIGHT v. BEVERIDGE, COUNTY CLERK.

Supreme Court of Oregon

January 4, 1927

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Mandamus by Margaret B. Wright to require Joseph W. Beveridge, as County Clerk of Multnomah county, to file a complaint for divorce on the payment of a filing fee of $12, without the payment of $5 district attorney's fee. From a judgment dismissing the proceeding, plaintiff appeals. Affirmed.

This is a proceeding in mandamus to require the county clerk of Multnomah county to file a complaint for divorce upon the payment of a filing fee of $12, without the payment of the $5 district attorney's fee required by chapter 162, pp 241-243, General Laws of Oregon 1925.

The petition for an alternative writ of mandamus set forth in detail the facts. An order was issued requiring the county clerk to show cause why he should not file the divorce complaint without the payment of the district attorney fee. The defendant demurred to the alternative writ. The court sustained the demurrer. Plaintiff refused to plead further and the court dismissed the proceeding. Plaintiff appeals.

Oliver M. Hickey, of Portland, for appellant.

Stanley Myers, Dist. Atty., and George Mowry, Deputy Dist. Atty both of Portland, for respondent.

BEAN, J.

The vital question raised herein is whether that portion of chapter 162, Gen. Laws of Oregon 1925, requiring the plaintiff to pay a fee of $5 to "cover the appearance" of the district attorney in such suit is valid. Plaintiff contends that that portion of the act of 1925, requiring the payment of such fee, is unconstitutional and provides for taking private property for "private" use, in violation of article 1, § 18, of the Constitution of Oregon, and imposes a special burden on plaintiffs in divorce suits, not required of other litigants and therefore repugnant to article 1, § 20, of the Constitution. That portion of the legislative act under consideration reads as follows:

"There shall be collected by the county clerk of each county at the time of the filing of each divorce action or proceeding for having a marriage declared void, in the circuit court for such county, in addition to all other fees collected, a fee of $5 to cover the appearance of the district attorney in such action, and the said county clerk shall, on the first working day of each month, forward all moneys collected for such additional fees during the preceding month to the state treasurer with a detailed statement showing the purposes for which such fees are paid, which shall be placed to the credit of the general fund of the state of Oregon; provided, that all moneys so collected and paid to the state treasurer shall be considered and constitute a continuing appropriation for the purpose of paying a portion of the monthly salaries of the various district attorneys of the state of Oregon, as provided in this act. The secretary of state shall keep a separate account of all such moneys collected under the provisions of this act and shall issue warrants on such account in payment of the monthly salaries of the various district attorneys to the extent that there are sufficient funds in the special account herein created to pay the total monthly salary of one or more district attorneys. When the funds in such special account shall be reduced to such an extent as not to be sufficient to pay at least one district attorney's monthly salary, then in that event the balance of the monthly salaries of the district attorneys shall be paid from the regular biennial appropriation for the payment of salaries of district attorneys."

In the consideration of this question we start with the proposition that every reasonable presumption is in favor of the validity of the statute. The Legislature can enact any law not repugnant to the organic law of the land. State v. Hecker, 109 Or. 520, 221 P. 808. In order to hold a statute invalid there must be a plain, palpable, and clear conflict between the enactment and the Constitution. These are fundamental principles.

Divorce is prima facie prejudicial to the public good. The state is therefore a party defendant in every divorce suit, and hence every divorce suit is, in effect, a suit against the state. Hawley v. Hawley, 101 Or. 649, 653, 199 P. 589.

The statute in question is in complete harmony with the long-established policy in the United States, expressed as follows in 19 C.J. p. 19:

"A divorce cannot be had except in that court upon which the state has conferred jurisdiction, and then only for those causes and with those formalities which the state has by statute prescribed. The married status of parties, being a matter of public interest, and controlled by the sovereign will for the benefit of the community at large, cannot be dissolved by the mere act or consent of the parties. The state is an implied party to all suits for divorces. * * *"

See, also, Pennoyer v. Neff, 95 U.S. 714, 734, 24 L.Ed. 565; 26 A. & E. Enc. of Law (2d Ed.) 487; Bridges v. Multnomah County, 92 Or. 214, 221, 180 P. 505; Rapp v. Multnomah County, 77 Or. 607, 610, 152 P. 243; 9 R. C. L. 245, § 5; 9 R. C. L. 250, § 9.

The state has a right to place divorce litigants in a special class for the reason that in the other ordinary forms of civil litigation the state is not a party, nor are the services of the district attorney required, as in divorce cases. The statute therefore does not violate any of the constitutional provisions that prohibit class legislation. State ex rel. v. Dunbar, 53 Or. 45, 50, 98 P. 878, 20 L. R. A. (N. S.) 1015. The statute affects all persons of a certain class alike. The classification is reasonable. The necessity therefor is apparent and the reasons cogent.

Parties to a judicial proceeding are required to contribute toward the expense of maintaining courts of justice, or a particular action, suit, or proceeding therein, by the payment of certain sums of money, which are denominated fees. The sum of $5 which the statute in question requires each divorce applicant to pay is purely a fee, and is in no sense a tax. Section 1111, Or. L.; State ex rel. v. Dunbar, 53 Or. 45, 49, 50, 98 P. 878, 20 L. R. A. (N. S.) 1015.

The statute here in question is by no means new or unfamiliar legislation in this state. A similar statute was previously in existence for many years, as shown by Hill's Code, §§ 1073, 1074, and Bellinger and Cotton's Code, §§ 1097, 1098. Bellinger and Cotton's Code provides, in section 1098, that:

"Plaintiff in divorce suit must deposit ten dollars before complaint filed. * * * It is hereby made the duty of the plaintiff in every divorce suit to deposit with the clerk of the court in which the suit is instituted, before the complaint is filed, the sum of ten dollars, which sum shall be paid to the district attorney by the clerk as his fee in such suit, when his fee therein is allowed by the court as aforesaid; and if the plaintiff prevail in such suit, he or she shall be allowed such sum of ten dollars as a disbursement against the defendant."

This statute was finally repealed by chapter 202, Laws of 1907, p. 362.

In the case of State ex rel. v. Moore, 37 Or. 536, 540, 62 P. 26, 27, it was strongly urged by the appellant that this statute, which was known then as section 1074, Hill's Code, had been impliedly repealed. The Supreme Court, however, held to the contrary, and in rendering the opinion in that proceeding, which, by the way, was a mandamus proceeding, the same as this, Mr. Chief Justice R. S. Bean said:

"The fee required by section 1074 to be paid to the clerk by the plaintiff in a divorce suit is a mere deposit for the district attorney, and not for his own use or that of the county. Under the law as it stood prior to the act of 1898, placing the district attorney upon a salary, he was entitled to such fee as compensation for his services. Since that act the fee still remains, and the district attorney is required to collect it as before, but he must

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