
    Walker v. Parkway Cabs, Inc.
    (Decided May 6, 1935.)
    
      Mr. John W. Goivell, for plaintiff in error.
    
      Mr. S. Geismar and Mr. Harry H. Shaffer, for defendant in error.
   Matthews, J.

The Court of Common Pleas of Hamilton county affirmed the judgment of the Municipal Court of Cincinnati, dismissing the action of the plaintiff in error, Dwight Walker, for failure to comply with the order of the court to give security in the sum of $25, for the cost of summoning the jury and the jurors’ fees. Plaintiff in error had filed a written demand for a jury, accompanied by his affidavit that he was unable to pay, or secure to be paid, these costs and fees. Thereafter, the defendant in error filed a motion to require the plaintiff in error to deposit the costs of the jury, as required by the statute, and upon the hearing of this motion the plaintiff in error introduced his affidavit in evidence. This was all the evidence offered. The order to give security was thereupon made, and the plaintiff in error failing to comply, and not withdrawing his demand for a jury, the court dismissed the action without prejudice. This dismissal is brought under review in this court by this proceeding in error.

Unless the proof of the plaintiff’s inability to pay or secure the costs distinguishes this case, so that the statute, if applied to this situation, would be unconstitutional, this case is ruled by Miller, Recr., v. Eagle, 96 Ohio St., 106, 117 N. E., 23. That case involved the constitutionality of Section 1579-61, General Code, applicable to the Municipal Court of Dayton. The case at bar involves Section 1558-16, General Code, applicable to the Municipal Court of Cincinnati. The language of the two sections is almost identical.

In Miller, Recr., v. Eagle, supra, the court pointed out that under the law challenged in Reckner, Supervisor, v. Warner, 22 Ohio St., 275, a trial by jury could be obtained only by the giving of an appeal bond, and that the constitutionality of the law was assailed on that ground. Likewise, in cases instituted before justices of the peace, a constitutional jury cannot be secured except on appeal to the Common Pleas Court, a condition of which is the giving of a bond on appeal to pay all costs, etc. The constitutionality of this law was questioned in Norton v. McLeary, 8 Ohio St., 205. Both laws were held not to violate the constitutional provision for trial by jury. Mainly on the authority of these two cases the court, in Miller, Recr., v. Eagle, supra, held that the Dayton Municipal Court Act, Section 1579-61, General Code, did not violate Section 5 of Article I of the Constitution of Ohio, saying at page 110:

“By parity of reasoning the condition imposed in the instant case by Section 1579-61, requiring the cost of summoning jurors and the fees of jurors to be secured in advance by the party demanding the jury, is likewise but a moderate and reasonable restriction upon the enjoyment of the right of a trial by jury and is not an impairment of that right.”

In Capital Traction Co. v. Hof, 174 U. S., 1, 19 S. Ct., 580, 43 L. Ed., 873, the Supreme Court of the United States held that the act of Congress conferring jurisdiction upon justices of the peace in the District of Columbia to hear minor actions without a jury, but providing for a trial de novo to a jury in the District Court, was in consonance with the Seventh Amendment to the United States Constitution. While the Seventh Amendment to the United States Constitution is not a limitation upon the power of the states, the decision of the United States Supreme Court construing it is very persuasive of the construction which should be placed upon similar language in the state Constitution.

We find no dissent from the rule that a state may require prepayment of or security for the costs as a condition precedent to obtaining a jury. In an annotation to Le Bowe v. Balthazor, 180 Wis., 419, 193 N. W., 244, 32 A. L. R., 862, it is stated as the general rule, at page 865 of the annotation, that:

“Statutes providing that a person who demands a jury trial must pay a jury fee before the trial begins are generally held to be constitutional.”

Oases from twenty states are cited in support of the general rule. A few eases are cited in which, particular statutes are held to he unconstitutional, because of some special provision, but the annotator at page 869 remarks that: “No line of reason seems to have been advanced by the courts of these jurisdictions which would indicate a departure from the general rule.”

We assume that if an unreasonable restriction should be attempted upon the right to a jury trial, it would fail because of the constitutional guaranty. To make provisions requiring the prepayment of or security for the reasonable compensation for summoning the jury, and for the jurors’ services, has been uniformly held to be within the power of the Legislature, so that the tribunal (the jury) guaranteed by the Constitution may be created and rendered available. There is no obligation inherent in citizenship, so far as we know, that requires gratuitous service on the part of the constable in serving the venire or those whom he summons. They are entitled to reasonable compensation. To require the one who requests their services to pay has analogy in the generality of private transactions. The issue in such a situation is as to what is reasonable compensation. The ability, or inability, to pay of the person demanding the services has never been regarded as a factor in determining the reasonableness of a charge.

If a Legislature should attempt to burden the right to a jury trial with the condition of prepayment of costs so excessive that the judicial branch could say that it was in effect a denial of the right to trial by jury, that would be a violation of the Constitution. But courts presume that statutes are constitutional, and only denounce them as unconstitutional when they are clearly so.

The fees provided in this legislation cannot be said to be excessive compensation for the services contemplated. They are the same schedule that was sustained in Miller, Recr., v. Eagle, supra.

For these reasons the judgment is affirmed.

Judgment affirmed.

Ross, P. J., and Hamilton, J., concur.  