The Act of July 20, 1892, providing when a plaintiff may sue as
a poor
person, does not apply to appellate proceedings.
Federal appellate courts have no power to permit prosecutions
in forma pauperis in the absence of a statute.
This case is brought here on the following certificate:
"This was an action of tort. The plaintiff was a citizen of
Tennessee, and the defendant a corporation organized under the laws
of Virginia. The jurisdiction of the court below was wholly
dependent upon diversity of citizenship. There was a jury and
verdict against the plaintiff in error, and a judgment
accordingly."
"The plaintiff in error sued out this writ of error, and has
lodged with the clerk of this Court, within the time required by
law, a full transcript of the record in the court below. The
Page 195 U. S. 244
clerk refusing to docket same unless the plaintiff would deposit
with him the sum of $35 as security for taxable costs, as required
by Rule 16 of this Court, the plaintiff has filed her petition,
duly verified, praying to be allowed to prosecute her writ
in
forma pauperis, and that the clerk be required to docket said
transcript, and that the rule requiring a deposit to cover costs be
dispensed with. The petition shows a state of facts which entitle
the plaintiff to prosecute her writ of error as a poor person,
provided the Act of July 20, 1892, 27 Stat. 252, c. 209, applies to
appellate proceedings."
"Because this court has doubts as to whether the act of Congress
above mentioned applies to appellate proceedings, it is ordered
that the foregoing statement be certified to the Supreme Court, and
the instruction of that court be requested for the proper decision
of the following questions which arise upon the petition and motion
of the plaintiff in error:"
" 1. Does the Act of July 20, 1892, 27 Stat. 252, providing when
a plaintiff may sue as a poor person, apply to the prosecution of a
writ of error from this Court?"
" 2. If that act of Congress does not apply to appellate
proceedings, has this court any authority to permit the prosecution
of a writ of error
in forma pauperis?"
The Act of July 20, 1892, above referred to, reads:
"An Act Providing When Plaintiff May Sue as a Poor Person and
When Counsel Shall Be Assigned by the Court."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that any
citizen of the United States entitled to commence any suit or
action in any court of the United States may commence and prosecute
to conclusion any such suit or action without being required to
prepay fees or costs, or give security therefor before or after
bringing suit or action, 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 which he is about to
commence, or to give security for the same, and that he believes he
is entitled to the redress he seeks
Page 195 U. S. 245
by such suit or action, and setting forth briefly the nature of
his alleged cause of action."
"SEC. 2. That after any such suit or action shall have been
brought, or that is now pending, the plaintiff may answer and avoid
a demand for fees or security for costs by filing a like affidavit,
and willful false swearing in any affidavit provided for in this or
the previous section shall be punishable as perjury is in other
cases."
"SEC. 3. That the officers of the court shall issue, serve all
process, and perform all duties in such cases, and witnesses shall
attend as in other cases, and the plaintiff shall have the same
remedies as are provided by law in other cases."
"SEC. 4. That the court may request any attorney of the court to
represent such poor person, if it deems the cause worthy of a
trial, and may dismiss any such cause so brought under this act if
it be made to appear that the allegation of poverty is untrue, or
if said court be satisfied that the alleged cause of action is
frivolous or malicious."
"SEC. 5. That judgment may be rendered for costs at the
conclusion of the suit, as in other cases:
Provided, That
the United States shall not be liable for any of the costs thus
incurred. "
Page 195 U. S. 247
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
1. After the passage of the Act of July 20, 1892, many
applications were made to this Court for leave to prosecute writs
of error or appeals
in forma pauperis, and were uniformly
denied, as we were of opinion that the act had no relation to
proceedings in this Court. And we so stated in
Gallaway v. Fort
Worth Bank, 186 U. S. 177,
where leave was asked to prosecute a writ of error to a state court
without giving security as required by ยง 1000 of the Revised
Statutes. The ruling would have been the same if the review of the
judgment or decree of a court of the United States had been sought,
because, in our view, the statute refers only to the court of
original jurisdiction. And the same ruling must necessarily obtain
in the circuit courts of appeals.
The act consists of five sections. Of these, sections 3 and 4
obviously relate to the trial or hearing. By section 5, "judgment
may be rendered for costs at the conclusion of the suit, as in
other cases," which we take to mean judgment at the close of the
trial or hearing, and not judgment then and also judgment in
appellate proceedings, or, in case of such proceedings, no judgment
for costs below until judgment rendered above.
Page 195 U. S. 248
The first section relates to the commencement and carrying
forward of a suit or action without plaintiff's being required to
prepay fees or costs or to give security therefor, whether the fees
or costs accrue at the beginning or during the progress of the suit
or action. The application is to be made at the outset, and the
order, if granted, covers the fees or costs accruing when or after
the suit or action is commenced. And this result is secured by the
words "and its prosecution to conclusion." That conclusion is the
termination of the suit or action in the court where it is
commenced. The second section provides for a similar application
after the suit or action has been brought.
The words "suit or action" are used in both sections, and the
applicant is required to set forth "his alleged cause of action,"
and by section 4, the case may be dismissed "if it be made to
appear that the allegation of poverty is untrue, or if said court
be satisfied that the alleged cause of action is frivolous or
malicious."
Lord Coke defined "action" to be "a legal demand of one's
right," and cause of action comprises every fact a plaintiff is
obliged to prove in order to obtain judgment; or, conversely, every
fact the defendant would have the right to traverse
Railway
Company v. Dixon, 179 U. S. 131,
179 U. S. 139.
The words "action" and "cause of action" are not ordinarily
applicable to writs of error, and, in our opinion, were obviously
not so applicable here, but used
diverso intuitu. And this
is so whether a writ of error be considered a new proceeding or a
continuation of the original proceeding, as it is usually regarded
in the federal courts.
Cohens v.
Virginia, 6 Wheat. 410;
Nations v.
Johnson, 24 How. 195,
65 U. S. 205;
In re Chetwood, 165 U. S. 443,
165 U. S.
461.
A leading case on the subject is
Moore v. Cooley, 2
Hill, 412. The statute of New York under consideration in that case
was as follows (2 Rev.Stat. N.Y.2d ed. 1836, p. 362):
"Every poor person, not being of ability to sue, who shall have
a cause of action against any other, may petition the
Page 195 U. S. 249
court in which such action is depending, or in which it is
intended to be brought, for leave to prosecute as a poor person,
and to have counsel and attorneys assigned to conduct his
suit."
After quoting the statute, Judge Cowen said:
"Strictly speaking, an error on which a writ lies is not a cause
of action, for, as Lord Coke says, there is a distinction between
writs and actions, and under this distinction he instances actions
and writs of error. (2 Inst. 39, 40.) And yet a release of all
actions extends to writs of error, when anything may be recovered
or taken by way of restitution under or in consequence of the writ
of error. (Co.Litt. 288, b; Bacon, Abr. Release, [1]2.) This,
however, I take it, proceeds rather upon an equitable, and
therefore extended, construction of the words in the release beyond
their strict meaning, for they generally reach the original matter
out of which the error arose, that being the direct subject of an
action if the matter be thrown open by the writ of error. The
original matter being released, therefore, the words are very
properly construed as reaching indirectly and in liberal
construction to the writ of error itself, because that depends upon
the original matter. Yet, in strictness, no book holds the word
'action,' or words 'cause of action,' to be identical with a writ
of error or cause of a writ of error."
"There can be little doubt that the statute under which this
motion is made should be construed strictly, for the pauper comes
to litigate entirely at the expense of others. He is neither to pay
his own attorneys or counsel, nor is he liable to his adversary
should the suit prove to be groundless. He thus enjoys a great
privilege and exemption from the common lot of men whereby, in
respect to causes of action proper, he becomes, as Lord Bacon says,
rather able to vex than unable to sue. (Hist. of Hen. VII.)"
Lord Bacon was referring to the statute 11 Hen. VII., c. 12, and
his language is elsewhere translated or explained to mean "that the
charity of the legislature thought it better that the
Page 195 U. S. 250
poor man should be able to vex than that he should not be able
to sue." 6 Bacon's Works 161.
So, in
Bristol v. United States, 129 F. 87, where the
Circuit Court of Appeals for the Seventh Circuit held that the Act
of Congress of July 20, 1892, did not entitle a defendant in a
criminal case to prosecute a writ of error out of the circuit court
of appeals
in forma pauperis, Jenkins, J., delivering the
opinion, said:
"We do not think it can properly be said that a writ of error is
a suit or action within the statute so far as respects a writ of
error in a criminal case. Were it not for the words 'prosecute to
conclusion,' we doubt if any court would hold that the act applied
to an appeal or writ of error in a civil cause. The applicant, by
the statute, must declare the nature of his cause of action. Surely
an erroneous ruling by the trial court cannot be held to furnish a
'cause of action' as that phrase is commonly understood. The
statute, by that term, in our judgment refers to a legal demand by
one against another, not to the rulings of a trial court. Under a
somewhat similar statute of the State of New York, its supreme
court, speaking through Judge Cowen, held that the provisions of
the statute do not extend to writs of error.
Moore v.
Cooley, 2 Hill 412."
We adhere to the view that the act, on its face, does not apply
to appellate proceedings, and that it does not is sustained by
other considerations.
The Act of July 20, 1892, does not purport to grant the right to
prosecute a writ of error or an appeal, and that right depends on a
statute, and not on the common law.
United
States v. More, 3 Cranch 159, 171 [argument of
counsel -- omitted]. Errors can be reviewed only in the cases in
which those processes are given by statute.
Ex Parte
Parks, 93 U. S. 21.
Section 11 of the Judiciary Act of March 3, 1891, creating the
circuit court of appeals, provides:
"And all provisions of law now in force regulating the methods
and system of review, through appeals or writs of
Page 195 U. S. 251
error, shall regulate the methods and system of appeals and
writs of error provided for in this act in respect of the circuit
courts of appeals, including all provisions for bonds or other
securities to be required and taken on such appeals and writs of
error, and any judge of the circuit courts of appeals, in respect
of cases brought or to be brought to that court, shall have the
same powers and duties as to the allowance of appeals or writs of
error, and the conditions of such allowance, as now by law belong
to the justices or judges in respect of the existing courts of the
United States respectively."
There are several such provisions, and, among others, section
1000 of the Revised Statutes reads:
"Every justice or judge signing a citation on any writ of error
shall, except in cases brought up by the United States or by
direction of any department of the government, take good and
sufficient security that the plaintiff in error or the appellant
shall prosecute his writ or appeal to effect, and, if he fails to
make his plea good, shall answer all damages and costs, where the
writ is a supersedeas and stays execution, or all costs only where
it is not a supersedeas as aforesaid."
Clearly an act giving the right to prosecute
in forma
pauperis cannot be extended by implication beyond its terms,
in conflict with existing provisions in relation to writs of error
and appeals.
The result is that the first question must be answered in the
negative.
2. The second question is whether, if the Act of July 20, 1892,
does not apply to appellate proceedings, the court of appeals has
"any authority to permit the prosecution of a writ of error
in
forma pauperis."
We answer that that court has no such power unless derived from
statute, and we find no statute authorizing any order to that
effect.
Costs are the creatures of statute, and it is settled that
authority to permit prosecution
in forma pauperis must be
given by statute.
Page 195 U. S. 252
By section 2 of the Judiciary Act of March 3, 1891, the costs
and fees in the Supreme Court are made the costs and fees in the
circuit courts of appeals, and the latter courts are empowered to
establish all rules and regulations for the conduct of the business
of the Court.
And it appears that, on November 21, 1898, Rule 16 of the
Circuit Court of Appeals for the Sixth Circuit was so amended as to
read that,
"at the time of filing the record, the plaintiff in error or
appellant shall deposit with the clerk the sum of thirty-five
dollars as security for costs, except in cases in which the proper
showing is made, and an order of this Court is entered thereon
allowing the cause to proceed
in forma pauperis."
But the exception must be assumed to have been framed on a
construction of the Act of July 20, 1892, which we have been
constrained to hold it does not bear, and the exception falls in
the absence of a statute authorizing such an order.
We need not advert to the distinction between costs and fees,
but it should be noted that the power of the circuit courts of
appeals in respect of the distribution of costs or in dealing with
its officers in respect of their fees under special circumstances
is not here involved.
Both questions answered in the negative.
