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Counsel for Appellant.

Lowe appealed to the Supreme Court of the State, which affirmed the judgment, upon an opinion of the Supreme Court Commissioners, holding that the constitutionality of section 326 of chapter 82 had been settled by the decision of In re Ebenhack, 17 Kansas, 618, in which the Supreme Court upheld the constitutionality of the similar provision of section 18 of chapter 83, concerning proceedings before justices of the peace for misdemeanors,) and that, according to the decision of the Supreme Court in State v. Zimmerman, 31 Kansas, 85, as the jury were expressly authorized by the statute to determine both the law and the fact, neither the trial court nor the appellate court of the State had power to interfere with the verdict. 46 Kansas, 255.

A motion for a rehearing was overruled by the Supreme Court of the State in an opinion, which, after citing the decision in Ebenhack's case, proceeded and concluded as follows: “After a defendant is acquitted, the State is not entitled to a new trial before a jury as to which party must pay the costs. The prosecuting witness is so connected with the State in the trial that, after the acquittal of the defendant, he cannot demand a re-trial upon the evidence before another jury. If costs are improperly taxed by the court after the acquittal of the defendant, of course a motion can be made for the re-taxation, and a proper inquiry may be had thereon. In this case, it appears that the district court approved the verdict of acquittal, and also the finding of the jury against the prosecuting witness; therefore, in this case, the court below pronounced judgment of acquittal, and for the commitment of the prosecuting witness, in accordance with its own opinion – not merely the opinion of the jury." 47 Kansas, 769, 770.

Lowe thereupon sued out this writ of error, contending that he had been deprived of his liberty or property without due process of law, and had been denied the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution of the United States.

Mr. George Chandler for appellant.
No appearance for appellee.

Opinion of the Court.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The code of criminal procedure of the State of Kansas provides that “whenever it shall appear to the court or jury trying the case, that the prosecution has been instituted without probable cause and from malicious motives, the name of the prosecutor shall be ascertained and stated in the finding; and such prosecutor shall be adjudged to pay the costs, and may be committed to the county jail until the same are paid, or secured to be paid.” Kansas Gen. Stat. of 1889, c. 82, $ 326.

The only question presented by the record for the determination of this court is whether this enactment, as applied by the Supreme Court of Kansas to this case, contravenes the Fourteenth Amendment of the Constitution of the United States, by depriving Love of his liberty or property without due process of law, or by denying him the equal protection of the laws.

Whether the mode of proceeding, prescribed by this statute, and followed in this case, was due process of law, depends upon the question whether it was in substantial accord with the law and usage in England before the Declaration of Independence, and in this country since it became a nation, in similar cases. Murray v. Hoboken Co., 18 Kow. 272, 277; Dent v. West Virginia, 129 U. S. 114, 124.

By the common law, at first, while no costs, eo nomine, were awarded to either party, yet a plaintiff who failed to recover in a civil action was amerced pro falso clamore. Bao. Ab. Costs, A; Day v. Toodworth, 13 How. 363, 372. And from early times the legislature and the courts, in England and America, in order to put a check on unjust litigation, have not only, as a general rule, awarded costs to the party prevailing in a civil action, but have, not infrequently, required actual payment of costs, or security for their payment, from the plaintiff in a civil action, or even from the prosecutor in a criminal proceeding..

For instance, plaintiffs have been required, by general statute or by special order, to give security for the costs of the

Opinion of the Court.

action, or to pay the costs of a former suit before suing again for the same cause. Shaw v. Wallace, 2 Dall. 179; Hurst v. Jones, + Dall. 353; Henderson v. Griffin, 5 Pet. 151, 159. Third persons allowed to intervene, on condition of giving bond to pay costs, may be compelled to do so by attachment, without remitting the payee to suit upon the bond. Craig r. Leitensdorfer, 127 U. S. 764, 771. And in an information to enforce a charitable trust a relator is required, who may be compelled, if the information is not maintained, to pay the costs. Attorney General v. Smart, 1 Ves. Sen. 72, and note; Attorney General v. Butler, 123 Mass. 304, 309.

English statutes, from long before the American Revolution, authorized costs against informers upon a penal statute, or against private prosecutors of an indictment or information, to be awarded by the court, either absolutely, or unless the judge, before whom the trial was bad, certified that there was probable cause for the prosecution. Stats. 18 Eliz. c. 5; 27 Eliz. c. 10; 4 W. & M. c. 18, § 1; 13 Geo. III, c. 78, $ 64; Bac. Ab. Costs, E; The King v. Heydon, 1 W. Bl. 356; S. C. 3 Burrow, 1304; The King v. Commerell, 4 M. & S. 203; The Queen v. Steel, 1 Q. B. D. 482. In like manner, by the act of Congress of May 8, 1792, c. 36, $ 5, "if any informer or plaintiff on a penal statute, to whose benefit the penalty or any part thereof, if recovered, is directed by law to accrue, shall discontinue his suit or prosecution, or shall be ponsuit in the same, or if upon trial a verdict shall pass for the defendant, the court shall award to the defendant his costs, unless such informer or plaintiff be an officer of the United States specially authorized to commence such prosecution, and the court before whom the action or information shall be tried, shall at the trial in open court, certify upon record, that there was reasonable cause for commencing the same, in which case no costs shall be adjudged to the defendant.” 1 Stat. 277. And that provision has been substantially reënacted in section 975 of the Revised Statutes.

If the statute of Kansas, now in question, had provided that, upon the failure of the prosecution, the prosecutor should be absolutely liable to pay the costs, and should be committed

Opinion of the Court.

until he paid or secured them, there could have been no doubt of the validity of the statute. Or if the statute had made him liable for costs unless the court before which the trial took place certified that there was probable cause for instituting the prosecution, its validity would have been equally clear. The liability imposed upon him by the statute is less than in either of the cases supposed. He is not made absolutely liable for the costs; nor is a certificate of probable cause required to protect him from liability. But the burden is thrown upon the defendant of proving want of probable cause, as well as malicious motives, on the part of the prosecutor, before the latter can be charged with the costs.

In the case at bar, there can be no doubt of the prosecutor's identity, for he signed and made oath to the information, and was named in the verdict. Being the actor in the litigation, he had no right to complain of being obliged, if unsuccessfal, to pay the costs upon the conditions previously prescribed by the legislature. Whether the question of probable cause for the prosecution, as affecting the question of costs, should be tried and determined by the court or the jury, and with or after the main question of the guilt of the defendant, is matter of convenient practice, not of constitutional right. A prosecution for libel, at least, can hardly be tried without exhibiting to the court and jury the motives and grounds of action of the prosecuting witness. It is not to be doubted that, by virtue of the statute, he had the right, if seasonably claimed, to be heard, and to introduce evidence, at the trial of the case, upon the question whether he instituted the prosecution without probable cause and from malicious motives. The record transmitted to this court omits all the oral testimony offered at the trial, and contains nothing having any tendency to show that at the trial he was denied the opportunity of offering arguments or evidence in support of his good faith and probable cause, or requested of the court any ruling or instruction upon that subject. It was after the verdict had been rendered in accordance with the statute, and after the trial court, “ being satisfied therewith," had approved it, that he appears, for the first time, to have asserted — as a ground for setting aside that

Disseuting Opinion: Brown. J.

part of the verdict which found “that this prosecution was in. stituted without probable cause and from malicious motives'

that he had not and could not have been heard upon that matter at the trial.

The Supreme Court Commissioners, indeed, expressed an opinion, based upon the decision in State v. Zimmerman, 31 Kansas, 85, that the finding of the jury could not be reviewed by the court. 46 Kansas, 255. But the Supreme Court of the State, in its opinion delivered upon denying a motion for a rehearing, put the final judgment upon the grounds that the prosecuting witness was so connected with the State in the trial of the prosecution, that he was not entitled to a separate trial by another jury upon the question of his liability for costs; and that “the court below pronounced judgment of acquittal, and for the commitment of the prosecuting witness, in accordance with its own opinion -- not merely the opinion of the jury.” 47 Kansas, 769, 770. And there is nothing in the statute, or in either of the opinions delivered below, to countenance the theory that the prosecutor had not the right to be heard, at the trial before the jury, upon every question which was to be determined by their verdict. If any evidence, offered upon one of the issues on trial, is incompetent upon the other issue, its effect must be restricted accordingly by the instructions of the court, as in the case of two persons indicted jointly, pleading separately, and tried together. Sparf v. United States, 156 U. S. 51, 58.

The necessary conclusion is that the proceeding by which judgment for the costs of the prosecution was rendered against the present plaintiff in error was due process of law.

As the statute is applicable to all persons under like circumstances, and does not subject the individual to an arbitrary exercise of power, it has not denied him the equal protection of the laws. Duncan v. Missouri, 152 U. S. 377.

Judgment affirmed. MR. JUSTICE BRown dissenting.

Did the statute of Kansas require broadly that the prosecutor in every criminal case should be held liable for costs, I

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