being one to the public, it seems to us, may for the same reason be made payable in advance, instead of at the termination of the litigation. We do not perceive that the exaction of this fee constitutes a sale or denial of right and justice under any accepted interpretation of the meaning of that phrase. Nothing has been suggested which indicates that the provision in our Constitution should be interpreted differently from similar provisions in other constitutions. The petitioner contends that the docket | priated to pay the salaries of the justices, fee of $25 is unreasonable, considered in re- commissioners, marshal, and other expenses lation to the particular service rendered of maintaining the court. The fee does not therefor. If, as he contends, the only serv- appear to us to be unreasonable in amount. ice was the "placing of a rubber stamp upon We do not consider it an objection that the a case-made, and the writing upon the index fee is exacted in advance of the rendition of and docketing records and filing of such the entire service to the party. Prior to case," by the clerk, there might be merit the passage of the Act of 1913, before rein his contention. But we do not so con- ferred to, the clerk received no salary from strue the purpose of the charge. There are the state, but his entire compensation conother officers of the court than the clerk, sisted of reasonable fees collected from parwho render some service in every cause ties for services rendered, and retained by filed. The only compensation of these of him. In Bohart v. Anderson, 24 Okla. 82, ficers, as well as the clerk, is by salary paid 103 Pac. 742, 20 Ann. Cas. 142, it was held, out of the general revenues. We think the for reasons therein stated, that in the abpurpose of the fee is to reimburse the state sence of a statute authorizing it, the clerk for the expenses incurred in providing and might require payment of his fees in admaintaining all of the officers and other vance of rendering the service, and decline facilities of the court, and is intended as to render the service until the fee was tencompensation to the state for services rendered. The fee here involved, although dered, not by the clerk only, but by the entire court. At the oral argument it was agreed that the message of the governor to the legislature (Senate Journal, Reg. Session, 5th Legislature of Oklahoma, p. 138), recommending the enactment of the statute prescribing the docket fee, should be considered. In their brief counsel for petition er say that "what the legislature really intended in the enactment of this law and for what purpose it was enacted" is indicated in this message. Therein, under the head of "Revenues to be Derived from De- It is next insisted that the act (Sess. partments," the governor said: "Every Laws 1915, chap. 87, p. 113) embraces two state agency, with a few exceptions, should subjects, and is therefore invalid under arbe made at least partially self-sustaining. ticle 5, § 57, of the Constitution (WilThe courts, which are a necessary agency liams's, § 147). We do not think the profor the peaceable settlement of civil con- vision relative to fees and costs in causes troversies, and essential for good govern- filed in the supreme court, and the provi ment, should not be supported entirely by sions relative to the creation of a tempothe taxpayers. The litigants in civil cases rary commission to assist the court in dis should at least bear a part of these burdens.posing of the causes accumulated and being There is no reason why the peaceable man filed in said court, are so distinct, unconwho settles his matters without legal connected, or incongruous as to relate to more troversies should be taxed to furnish this than one subject, within the meaning of the legal luxury entirely to the litigious citizen. Constitution. Insurance Co. of N. A. v. The record shows that it costs the state Welch, Okla., 154 Pac. 48; Noble State on an average of about $50 for every civil Bank v. Haskell, 22 Okla. 48, 97 Pac. 590; case appealed to the supreme court. I ac- State ex rel. Caldwell v. Hooker, 22 Okla. cordingly recommend that a docket fee be 712, 98 Pac. 964; Pond Creek v. Haskell, taxed in the sum of $25 as a part of the 21 Okla. 711, 97 Pac. 338; Re Ambler, 11 costs in every such case, to follow the re- Okla. Crim. Rep. 449, 148 Pac. 1061. sult of the case, provision being made by the statute for the plaintiff in error securing this cost or depositing same and to recover judgment there for if prevailing in the appeal." This tends to confirm what we would have otherwise concluded to be the purpose of imposing this fee. It is true that the fees collected by the clerk are much more than sufficient to reimburse the state for the entire expense of maintaining the clerk's office, but are less than the amount appro It is also urged that the section imposing the fee and providing for an advance payment to the clerk of $40 is repugnant to that part of § 57, art. 5, of the Constitution (Williams's, § 147), which reads: "No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length." The section in question does, by implica tion at least, amend §§ 7 and 8 of chapter 97, Session Laws 1913, without re-enacting and publishing them at length, or even referring to the title of the act. Constitutional prohibitions of the character here involved have often been discussed by the courts, and it appears: That they "have never, in construction, been given a rigid effect, but have been held applicable only to such statutes as come within their terms, when construed according to the spirit of such restrictions, and in the light of the evils to be suppressed." 36 Cyc. 1061. In People ex rel. Drake v. Mahaney, 13 Mich. 481, regarded as the leading case, the opinion by Judge Cooley on this point says: "This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent." The section in question is in form original and appears to be intelligible and complete in itself without reference to the then existing statutes amended thereby. Eliminating all reference to the existing state of the law, the section would read as if written: "In each cause hereafter filed in the supreme court, there shall be taxed a docket fee of $25, which shall be collected and recoverable as other costs. The advance payment to the clerk shall be $40." The reference to "other costs" for the procedure to be followed in collecting and recovering the fee is not objectionable. Pond Creek v. Haskell, 21 Okla. 711, 97 Pac. 338. We hardly think that the section is misleading, or that it is necessary for one of ordinary intelligence to refer to any other act or statute to ascertain the legislative intent to exact a docket fee of $25, and require an advance payment to the clerk of $40 in each case filed in the supreme court. While the purpose could have been as well effected by an act strictly amendatory in form, re-enacting all of §§ 7 and 8, with the desired changes, yet if the legis lature chose to employ an original act to accomplish the desired end, the court cannot interfere with their discretion in the matter. State ex rel. Bragg v. Rogers, 107 Ala. 455, 32 L.R.A. 520, 19 So. 909. While this question is not free from difficulty, and while we do not desire to encourage other legislation in this form, yet, in view of the fact that the legislative intent can be gathered from the act itself, and it does not tend to mislead or deceive, we cannot say that the mischief which the Constitution prohibits has been worked in this instance. While we do not doubt our power, nor are we unmindful of our duty to refuse the enforcement of statutes enacted in a manner contrary to the Constitution, yet that power exists and duty arises only when, in our judgment, the invalidity of the act is placed beyond a reasonable doubt. Pond Creek v. Haskell, supra. With us to doubt the constitutionality of a statute is to uphold it. It is finally claimed that the Act of 1915, having originated in the senate, is invalid because it is a revenue measure, while the Constitution provides in § 33, art. 5 (Williams's, § 95): "All bills for raising reve nue shall originate in the house of represen. tatives." From what has been said in the discussion of the first objection to the statute, it prescribes a fee to the public for services rendered by their officers, and is not exacted for revenue, but as compensation. An act prescribing such fees is not a revenue measure within the meaning of the Constitution. Chapter 248, Sess. Laws 1913, p. 684, imposing a registration tax on mortgages, was held in Cornelius v. State, 40 Okla. 733, 140 Pac. 1187, not to be a revenue measure within the meaning of this section of the Constitution, and was reaffirmed in Trustees, Executors, & Securities Ins. Corp. v. Hooton, Okla., L.R.A. 1916E, 602, 157 Pac. 293. No other objection has been made to the validity of the act. It follows that the respondent has proceeded in accordance with law, and the writ is denied. All the Justices concur, except Sharp, Ch. J., and Brett, J., who dissent. Sharp, Ch. J., dissenting: When the Bill of Rights (art. 2, § 1, Const.) ordained that the courts of justice of the state should be open to every person and right and justice administered without sale, denial, delay, or prejudice, it was intended, inter alia, to break up the somewhat common practice that formerly prevailed of ' dered, is violative of both the letter and requiring litigants to make cash deposits in spirit of an enlightened Constitution aimed, order to gain admission into the courts for partly at least, against such practices. If it the purpose of vindicating their rights. is within the power of the legislature to imThis clearly expressed immunity, vouch- pose a tax upon litigants, by requiring the safed by constitutional guaranty, the opin- prepayment of a charge of $25 in the guise ion of the court strikes down. It holds, in of a docket fee, it would seem that the effect, that, regardless of whether the legislature would be at liberty to multiamount involved be large or small, no mat- ply at will the amount of the so-called ter how glaring the error committed by docket fee or tax, and thus to permit an the trial court, board, or commission, and evil which the Constitution aimed to foreirrespective of the injustice and denial of stall. right that may follow, the portals of this court will open only when the clerk thereof has been paid $40, $25 of which is disingenuously and incorrectly designated as a docket fee. A statute which, in effect, provides that the jurisdiction of this court may be invoked only when tribute is paid the state, as distinguished from the payment of reasonable court fees, and which tribute or tax is used for current state purposes without regard to the service rendered or to be ren Aside from the validity of the act, its effect is to deny, or, at least, to impose an unjust burden upon litigants of limited financial means, the right to have their cases brought before this court for review. Entertaining these views, I am unable to concur in the opinion of the court. I am authorized to say that Mr. Justice Brett concurs in this dissent. Petition for rehearing denied December 19, 1917. Annotation-Constitutionality of statute requiring payment of court fees. It is not intended to include herein cases involving the constitutionality of a tax or fee as a condition of probate. For cases involving this point, see note appended to Malin v. La Moure County, 50 L.R.A.(N.S.) 997. L.R.A. 469, 36 N. E. 257 (payment of fees to be used in defraying salaries of court or county officers); Grinage v. Times-Democrat Pub. Co. (1902) 107 La. 121, 31 So. 682 (rule stated); Randall v. Kehlor (1872) 60 Me. 37, 11 Am. Rep. Nearly all state constitutions contain 169 (payment of jury fees); Knee v. provisions adopted from the Magna Baltimore City Pass. R. Co. (1898) 87 Charta in substance and effect requiring Md. 623, 42 L.R.A. 363, 40 Atl. 890 (payjustice to be administered without sale ment of appeal cost as condition to reor delay. These provisions are construed trial of case after reversal); Adams v. with reference to the purpose of the Corriston (1862) 7 Minn. 456, Gil. 365 original provision in Magna Charta, that (payment of jury fees); Eckrich v. St. to none will we sell, to none will we deny Louis Transit Co. 176 Mo. 621, 62 L.R.A. or delay the right of justice, to forbid 911, 98 Am. St. Rep. 517, 75 S. W. 755 the then prevailing practice of securing (payment of jury fees); State ex rel. favorable decisions by the courts by Hewlett v. Nutt (1878) 79 N. C. 263 (promaking large presents to the King or the vision that party cast in civil suit shall King's officers, or of securing delays in pay tax of $1, and in equity suit $2); the trial of cases by means of such pres- State ex rel. Atty. Gen. v. First Judicial ents. Hence it is held that constitution-Dist. Judges (1871) 21 Ohio St. 1 (fees to al provisions of this character have no application to reasonable statutory requirements for the payment of court fees as a condition to the right to invoke the aid of the court to enforce a cause of action or secure redress for wrongs committed, and such statutes are not violative of this constitutional provision. Swann v. Kidd (1885) 79 Ala. 431 (payment of fee on appeal to supreme court): Conneau v. Geis (1887) 73 Cal. 176, 2 Am. St. Rep. 785, 14 Pac. 580 (payment of jury fees); Adae v. Zangs (1875) 41 Iowa, 536 (payment of jury fees); Henderson v. State (1894) 137 Ind. 552, 24 be paid county officers); RE LEE, ante, 144 (payment of docket fee); Northern Counties Trust v. Sears (1895) 30 Or. 388, 35 L.R.A. 188, 41 Pac. 931 (payment of reasonable fees and charges of court officers); Bailey v. Frush (1873) 5 Or. 136 (advancement of trial fee); M'Donald v. Schell (1820) 6 Serg. & R. (Pa.) 240 (payment of cost before entry of appeal); Merrill v. Bowler (1897) 20 R. I. 226, 38 Atl. 114 (requiring deposit of $50 as condition to file petition in insolvency); Perce v. Hallett (1881) 13 R. I. 363 (requiring payment of entry and continuance fees); Harrison v. Wil lis (1871) 7 Heisk. (Tenn.) 35, 19 Am. Rep. 604 (tax upon suits to be paid by unsuccessful party); State v. Stanley (1879) 3 Lea (Tenn.) 524 (tax upon suits to be paid by unsuccessful party); Christianson v. Pioneer Furniture Co. (1898) 101 Wis. 343, 77 N. W. 174, 917 (payment of costs where cases reversed on appeal as condition to prosecute it further). It is the theory of these cases that constitutional provisions of this character are not intended to guarantee to the citizen the right to enforce a cause of action or secure redress for an injury or wrong done him without expense, but are intended simply to protect him from the imposition of such terms as unreasonably and injuriously interfere with his right to a remedy at law, or impede the due administration of justice. Adams v. Corriston (1862) 7 Minn. 456, Gil. 365. It has been held that where a fee required to be paid as a condition to the right of appeal does not apply on the salaries of the officers of the court, but is paid into the general city treasury and becomes a part of the general revenue of the county, subject to be used for any purpose which the county may desire, it amounts to a general tax, and a local statute imposing such a fee and limiting it to a designated county is violative of the constitutional provision against the Master and servant-liability for act of servant joy ride. -- 1. The owner of a garage is not liable for the loss of property destroyed by fire through the negligence of his mechanic, who, having a key to the garage, took a car therefrom without his master's knowledge for a joy ride, and upon running short of gasolene stopped at a farmhouse along the Note. - As to ratification of servant's wrongful act by retaining him in service, see annotation following this case, post, 155. Many phases of the general subject of the liability of the owner where an automobile sale of justice, etc., as well as the provision against local and special taxation laws. Hays v. C. C. & H. Min. & Mill. Co. (1910) 227 Mo. 288, 126 S. W. 1051. On the ground that the Constitution does not forbid the exaction of a reasonable compensation from persons requiring or who are specially benefited by the performance of officers' services, the same to be paid into the public treasury to reimburse the public for the expense incurred in providing and maintaining such officers. It has been held not to be essential that the amount collected inure to the personal benefit of the officer performing the service, nor is it material that the fees are called a tax. State ex rel. Atty. Gen. v. First Judicial Dist. Judges (1871) 21 Ohio St. 1. Taxes imposed upon the issuance of original writs and other process are strictly fees to the public, and not taxes within the meaning of the constitutional provision requiring all property to be taxed ad valorem. Lee County v. Abrahams (1879) 34 Ark. 166. And a tax to be paid on the commencement of a suit in the supreme court does not violate the constitutional provision with reference to taxation. State ex rel. Atchison & N. R. Co. v. Lancaster County (1876) 4 Neb. 537, 19 Am. Rep. 641. A. G. S. ages for loss of property by fire alleged to car is being used by a servant for his own have been caused by defendants' negligence. purpose and beyond the scope of his emReversed as to defendant motor company. ployment. In order to charge the owner, The facts are stated in the opinion. the person seeking recovery must establish Messrs. Grier, Park, & Nicholson, for the fact that at the time of the injury the appellants: one using the car was acting within the scope of his employment as the agent or servant of the owner. The liability of an owner of an automobile for injury to a third person by the party in charge of or driving the automobile Davis v. Littlefield, 97 S. C. 177, 81 S. grows out of the relationship of master and E. 487; Reilly v. Connable, 214 N. Y. 586, servant and cannot otherwise arise. It is L.R.A.1916A, 954, 108 N. E. 853, Ann. Cas. predicated on the familiar maxim, "re- | 1916A, 656; Hartley v. Miller, 165 Mich. spondeat superior." Davis v. Littlefield, 97 S. C. 177, 81 S. E. 487; Symington v. Sipes, 121 Md. 313, 47 L.R.A. (N.S.) 662, 88 Atl. 134; McNeal v. McKain, 33 Okla. 449, 41 L.R.A. (N.S.) | 775, 126 Pac. 742; Slater V. Advance Thresher Co. 97 Minn. 305, 5 L.R.A. (N.S.) 598, 107 N. W. 133; Danforth v. Fisher, 75 N. H. 111, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. 670, 71 Atl. 535; Hartley v. Miller, 165 Mich. 115, 33 L.R.A. (N.S.) 83, 130 N. W. 336; Fitzgerald v. J. I. Case Threshing Mach. Co. 100 S. C. 435, 84 S. E. 991. The law which imposes upon the master the duty of consummate care in the custody of things dangerous in themselves, such as torpedoes, dynamite, etc., is not applicable to the care and custody of an automobile. Neubrand v. Kraft, L.R.A.1915D, 691, and note, 169 Iowa, 444, 151 N. W. 455; Jones v. Hoge, 47 Wash. 663, 14 L.R.A. (N.S.) 216, 125 Am. St. Rep. 915, 92 Pac. 433; Steffen v. McNaughton, 142 Wis. 49, 26 L.R.A. (N.S.) 383, 124 N. W. 1016, 19 Ann. Cas. 1227; Berry, Automobiles, 144; Hartley v. Miller, 165 Mich. 115, 33 L.R.A. (N.S.) 81, 130 N. W. 336; McNeal v. McKain, 33 Okla. 449, 41 L.R.A. (N.S.) 779, 126 Pac. 742; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Danforth v. Fisher, 75 N. H. 111, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. 670, 71 Atl. 535. The master is not responsible for the acts of the servant beyond the real or apparent scope of his employment. McClenaghan v. Brock, 5 Rich. L. 17; Cobb v. Columbia & G. R. Co. 37 S. C. 199, 15 S. E. 878; Rucker v. Smoke, 37 S. C. 377, 34 Am. St. Rep. 758, 16 S. E. 40; Goodloe v. Memphis & C. R. Co. 54 Am. St. Rep. 67, and note, 107 Ala. 233, 29 L.R.A. 729, 18 So. 166; Morier v. St. Paul, M. & M. R. Co. 31 Minn. 351, 47 Am. Rep. 794, 17 N. W. 952; 26 Cyc. 1525; Slater v. Advance Thresher Co. 97 Minn. 305, 5 L.R.A. (N.S.) 598, 107 N. W. 902; McCarthy v. Timmins, 178 Mass. 378, 96 Am. St. Rep. 490, 59 N. E. 1038; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338. The owner of an automobile cannot be held liable for an injury occurring while the 115, 33 L.R.A. (N.S.) 83, 130 N. W. 336; Fleischner v. Durgin, 207 Mass. 435, 33 L.R.A. (N.S.) 79, 93 N. E. 801, 20 Ann. Cas. 1291; 26 Cyc. 1536; Jones v. Hoge, 47 Wash. 663, 14 L.R.A. (N.S.) 216, 125 Am. St. Rep. 915, 92 Pac. 433. If injury occurs while the servant is off duty and pursuing his own ends exclusively, there can be no question of the master's entire freedom from all liability, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master. 1 Shearm. & Redf. Neg. 5th ed. 147; Branch v. International & G. N. R. Co. 92 Tex. 288, 71 Am. St. Rep. 847, 47 S. W. 974; 26 Cyc. 1536; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338; Slater v. Advance Thresher Co. 97 Minn. 305, 5 L.R.A. (N.S.) 598, 107 N. W. 902. Messrs. Simpson, Cooper, & Babb also for appellants. Messrs. Featherstone & Knight and Dial & Todd, for respondents: To make the corporation liable it was not necessary to show that Boyd was engaged in any pecuniary business of the master. If the master allowed Boyd to use the car for his health or pleasure, in connection with his employment, if Boyd drove or handled the car as it was his habit to do, and the master knew of and approved of that custom or habit, then the master is liable. Griffin v. Russell, 144 Ga. 275, L.R.A. 1916F, 216, 87 S. E. 10, Ann. Cas. 1917D, 994; Davis v. Littlefield, 97 S. C. 177, 81 S. E. 487; Guignon v. Campbell, 80 Wash. 543, 141 Pac. 1031; McNeal v. McKain, 33 Okla. 449, 41 L.R.A.(N.S.) 775, 126 Pac. 742; Simmons v. Pennsylvania R. Co. 199 Pa. 232, 48 Atl. 1070; Griffin v. Russell, 144 Ga. 275, L.R.A.1916F, 216, 87 S. E. 10, Ann. Cas. 1917D, 994; Redding v. South Carolina R. Co. 3 S. C. 1, 16 Am. Rep. 681; Holley v. Walker, 7 S. C. 144; Carrier v. Dorrance, 19 S. C. 32, 1 Am. Neg. Cas. 725; Davis v. Columbia & G. R. Co. 21 S. C. 101; Polatty v. Charleston & W. C. R. Co. 67 S. C. 391, 100 Am. St. Rep. 750, 45 S. E. 932. |