Dunn Appeal

Opinion by

Wright, J.,

This proceeding had its inception when a police officer of the City of Sharon, following a raid, filed in-formations against officers of a fraternal organization in that municipality charging them with setting up a lottery and possessing gambling devices. On June 4, 1958, the Mercer County grand jury ignored the resulting bills of indictment and placed the costs on Michael J. Dunn, Mayor of the City of Sharon, as the real prosecutor. Dunn had ordered the raid, but his name was not endorsed on the indictments as the prosecutor, and he was not called as a witness before the grand jury. Dunn presented a timely petition for a rule on the District Attorney of Mercer County to show cause why the costs imposed upon him by the grand jury should not be set aside. To the rule granted on this petition the district attorney filed an answer. The County of Mercer was permitted to intervene and also filed an answer. At the time fixed for hearing on the rule, Dunn took the position that the imposition upon him of costs by the grand jury was irregular as a matter of law, and elected not to present any testimony. The court below thereafter discharged the rule.¹ Dunn has appealed.

The question before us, apparently one of first appellate impression in this Commonwealth, is whether a grand jury, upon ignoring a bill of indictment, may lawfully impose the costs upon a person neither endorsed on the bill as the prosecutor nor called as a witness. Our answer to this question is in the negative.

Section 62 of the Act of March 31, 1860, P. L. 427, 19 P.S. 1222, which deals with the power of grand and petit juries over costs, reads as follows: “In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall determine as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay the same within ten days”.

It is well settled that the court of quarter sessions has inherent discretionary power over the imposition of costs: Commonwealth v. Kocher, 23 Pa. Superior Ct. 65; Commonwealth v. Shaffer, 52 Pa. Superior Ct. 230. However, our research has disclosed no case which sustains the imposition of costs by the grand jury upon a person who was neither endorsed on the bill as the prosecutor nor called as a witness. The contention of appellees, adopted by the court below, is that appellant was given an opportunity to be heard under his rule to show cause, and that he presented no evidence to show that the return of the grand jury was improper.² The opinions in Commonwealth v. Doyle, 16 Pa. Superior Ct. 171, and Commonwealth v. McNabb, 91 Pa. Superior Ct. 582, upon which reliance is placed, are not controlling in the instant situation.

By our law no man is to be condemned unheard. We adhere to the view that the grand jury is without power to impose the costs of prosecution upon a person who is neither named on the bill of indictment as the prosecutor, nor called as a witness. In our opinion, the imposition by the grand jury of costs upon a person who did not initiate the prosecution, and who was not heard, is a violation of the constitutional requirement of due process. This unconstitutional imposition of costs may not be made constitutional by according to the person named by tbe grand jury a subsequent opportunity to assume the burden of proving tbat tbe imposition was unwarranted:

Lower court cases are in accord witb the' view herein expressed. “Tbe Court constantly instructs tbe grand jury that they have no right to impose costs on á defendant, because neither be nor bis witnesses appear before them. If. it is proposed by- the grand jury to place tbe costs on someone, who is not marked as the prosecutor, and who has not appeared before them, it would become-necessary that be should be notified to appear, so as to give him tbe opportunity of being beard in bis own behalf, before1 be could be condemned to pay tbe costs”: Commonwealth v. Madden, 1 District Reports 129. “To impose tbe costs on the real prosecutor, tbe party who appeared to have been tbe real prosecutor should have-been brought before tbe grand jury as a witness by subpoena- if necessary”: Commonwealth v. Roll, 26 District Reports 1078. “Before a grand -jury is permitted to impose costs upon a person who is not tbe prosecutor of record, tbe said person must have testified as a witness before tbe grand jury. As tbe bearing in a particular case progresses, if it should appear tbat another than tbe nominal prosecutor is tbe real prosecutor, tbe grand jury may then forthwith have summoned tbe apparent real, prosecutor before it, and take bis testimony; and after all tbe summoned witnesses are beard, the grand jury must, then dispose' of the costs in accordance witb tbe facts and tbe law and, if necessary, may determine whether tbe prosecutor shall pay tbe costs and, who the real prosecutor is”-: Commonwealth v. Simler, 19 West. 25.

Text writers are also in accord witb this view. “In imposing costs tbe graxid jury is not limited to tbe person marked, on tbe bill of Indictment as the prosecutor, but may find who is the actual prosecutor. But an imposition of costs on a third party who has not appeared, or who has not been asked to appear, will be set aside”: Sadler’s Criminal Procedure in Pennsylvania, 2nd Edition, Section 698, page 830. “A verdict imposing costs on a person as prosecutor will be set aside . . . where the grand jury place costs on a person not marked on an indictment as prosecutor, and who has not appeared before them”: 20 C.J.S., Costs, Section 439, page 684. And see Byrne’s Pennsylvania Criminal Procedure, Section 14, page 81.

The order of the court below is reversed, and the rule to set aside the imposition of costs is made absolute.

1 Because of unnecessary duplication of indictments, the court reduced the costs from $498.20 to $78.50. See Section 65 of the Act of March 31, 1860, P. L. 427, as amended, 19 P.S. 1291.

2 Although our decision is not based thereon, we here note the presumption that appellant, being a public officer, was actuated by a public motive. See Glesenkamp v. Pittsburgh, 320 Pa. 219, 181 A. 763; Wilson v. New Castle, 301 Pa. 358, 152 A. 102.