UNITED STATES NATIONAL BANK v. UNDERWRITERS AT LLOYD'S, LONDON et al, 239 Or. 298

SLOAN, J. This case is here on a motion to dismiss the appeal because the filing fee was not paid to the county clerk within the time allowed for the filing of notice of appeal. When the motion to dismiss was first presented it was allowed because of the decision in Citron v. Hazeltine, 1961, 227 Or 330, 361 P2d 1011. A motion for reconsideration has been filed. A majority of the court, for the reasons hereinafter stated, believe that the Citron case should be overruled.

In the instant case, counsel for appellant forwarded the notice of appeal and other documents from Portland to the county clerk of Sherman county. He failed to include a check for the filing fee. The next day the attorney called the clerk to make certain the notice of appeal had been received and filed. The clerk notified him that it had been. Nothing was said about the fee. Two days later, when the clerk was preparing to forward the papers to the clerk of this court, she noticed that the fee had not been received. She called the attorney and notified him of the lack of the fee.

He inquired if it would be satisfactory for him to mail a cheek. The clerk stated that it would be for it was her practice to merely endorse the check and forward to the clerk of this court. It arrived after the last date had expired upon which a notice of appeal could have been filed.

Chapter 27, Oregon Laws 1963, now provides a statutory declaration that the payment of the filing fee is not jurisdictional. To that extent the legislature has overturned the Citron decision. However, we are equally concerned about other aspects of the Citron decision. The obvious effect of the Citron case upon other functions of the county clerks leads us to believe that its overturn is inevitable. As indicated, the legislative reversal does no more than provide that the payment of a filing fee for the filing of a notice of appeal is not jurisdictional.

It does not overrule the effect of the Citron ease that any document filed with the clerk for which the filing is not paid is a nullity. A literal reading of the Citron case can produce no other conclusion. It is said that if such a hard and fast rule were not adhered to that the county clerk would be converted to a collection agency and required to devote much time to collecting unpaid fees. A review of the statutory scheme in respect to all fees collected by the clerk, and to prior decisions of this court will dispel that motion.

Prior to 1895 the statute specified a fee to be charged by the clerk for each act he performed in respect to the filing of an action and the trial thereof. See 2, Hill’s Annotated Laws of Oregon (2d ed 1892) § 2339. The clerk kept the fees paid as his compensation as clerk. In 1895, the legislature placed all clerks and certain other county officers, on a salary basis. The act enumerated the fees that were to 'bé collected by the clerk. The fees were no longer to be the property of the clerk but the property of the county.

Oregon Laws, 1895, page 77, § 8, of that act specified the filing fees required to be paid for the filing of various acts and provided, “* * * and such paper shall not be deemed filed unless such payment is made; * * The latter requirement has been retained since that date. ORS 21.110.

Section 10 of the 1895 Act provided that the clerk’s salary should be withheld if he filed a document without collecting the fee or neglected his duty in any other respect; “* * * until the matter is fully rectified.” That provision too has been carried forward. ORS 205.360. Therefore, the legislature protected the public funds by placing personal responsibility on the clerk. Reference to the statutes make it clear that when and by whom the fees are paid was and is not material. If the clerk failed to collect, he paid. This aspect of the ease will be referred to later.

The specification and collection of fees by the clerk of the supreme court was the same. 2, Hill’s Annotated Laws of Oregon, (2d ed 1892) § 2338. In 1899 the clerk of the supreme court was also placed upon a salary basis and a fixed filing fee provided for filing an appeal in this court. Oregon Laws, 1899, § 1, page 167. The act provided that the fee should be “in advance.” The payment of fees on appeal remained substantially the same until the general revision of the appellate code in 1959. ORS 19.035 now governs the payment of fees for appeal. It reads: “

(1) At the time the notice of appeal is filed with the clerk as provided in ORS 19.023, the appellant shall deposit with the clerk the amount of the Supreme Court filing fee. “

(2) Within 10 days after a notice of appeal has been filed the clerk shall send to the Clerk of the Supreme Court, at Salem, a certified copy of the notice of appeal and the appellant’s Supreme Court filing fee.” Emphasis is made that OES 21.010 to 21.050 respecting fees to be paid to the clerk of this court contained no provisions similar to that above mentioned compelling the county clerks to be personally responsible for the collection of fees. It is now important to see what the court has done with these statutes.

The first cases decided after the 1899 change in the filing fee requirement merely held that the fee could not be waived. Therkelsen v. Therkelsen, 1899, 35 Or 75, 78, 54 P 885, 57 P 373. In 1903 came Hilts v. Hilts, 43 Or 162, 72 P 697. In Hilts it was held that if the filing of the fee is a prerequisite to the filing of a transcript on appeal to this court then no filing is accomplished unless the fee has been paid. Hilts has been held controlling in two later cases of Hart v. Prather, 1912, 61 Or 7, 119 P 489, and Citron v. Hazeltine, swpra, 227 Or at 334.

There is one other case that has considered this statute, Templeton v. Lloyd, 1911, 59 Or 52, 109 P 1119, 115 P 1068. This was one of two cases bearing the same name and consolidated on appeal. A transcript was filed in both eases but only one fee was paid. In answer to a motion to dismiss because of the failure to pay the fees in one of the cases the court gave this short answer: “# * # and apparently, on account of the transcripts in the two cases of the same name being filed at the same time, some delay was caused in the payment of fees. This has been corrected.” The motion to dismiss was denied.

This case has significance by reason of the action taken. In the motion to dismiss, found in the files of this court, respondent had relied on Hilts v. Hilts, supra, in support of the motion. We do not know, of course, what prompted the court, in view of its earlier Hilts decision, to so summarily dispose of this motion to dismiss. The records of this court disclose that, as indicated in the quoted portion of the opinion, that the omission was corrected by a late payment of the filing fee.

The facts and authorities cited in the Hilts case deprive it of the significance attached to the case in the two later decisions. Particularly when applied to the present statute, above quoted, for the payment of fees on appeal to this court and in respect to the facts of the instant ease. In Hilts the transcript (required by the then appellate procedure) was sent by the appellant, to the deputy clerk of this court at Pendleton. The required fee did not accompany the document. The deputy clerk did not file the transcript. The fee was later paid, after the expiration of the time for filing.

The court held that because the statute required the payment of the fee “in advance” that no filing could be accomplished until the fee was paid. In the Hilts opinion the court quoted at length from The State v. The Chicago & Eastern Illinois Railroad Company et al, 1896, 145 Ind 229, 43 NE 226. The Indiana case did no more than decide that an official can and should refuse to file documents until the prescribed fees are paid. In the Indiana case an attorney took to the Secretary of State of Indiana papers involving the consolidation of certain railroads.

A statute of that state required the filing of such papers and provided that the “* * * Secretary of State shall neither file nor record * * *” such papers until the specified fees were first paid. In this instance the papers were tendered to the Secretary of State for filing. The Secretary determined that the statutory filing fee would be $25,000. The attorney, who had tendered the papers, not being prepared to pay so large a fee, withdrew the papers and took them away. The State of Indiana then filed the action to collect the fee on the basis of the tender for filing.

The court denied recovery on the basis that the Secretary had properly refused to file them when the fee was not forthcoming. That is all that the case held. The case did not, and could not have ruled on the collectability of the fee if the official had filed the papers absent on immediate payment of the fee. The Hilts opinion also cites Pinders v. Yager, 1870, 29 Ia 468. The later case says little that is of consequence to the problem at hand.

It is fair to say, accordingly, that when the Hilts case is stripped to the essentials it actually holds that a receiving official may and should deny any filing until any prescribed fee has been paid. The same is true in Hart v. Prather, supra, 61 Or 7. That case involved an appeal from the county court to the circuit court. And, although the clerk of the circuit court had received the necessary transcript on appeal, he did not file it until the time for filing had expired.

In Hart the filing was also governed by the statute relating to county clerks, above referred to, which specifically said a document shall not be deemed to have been filed until the fee had been paid. In addition to the Templeton v. Lloyd case, supra, 59 Or at 55, this court has considered one other case in which the document in question was actually filed but the fee not paid. That is Spaulding Log Co. v. Ryckman, 1932, 139 Or 230, 6 P2d 25. It would appear that the Spaulding case provides a workable and sound solution to the troublesome question mentioned at the outset of this opinion.

That is: What is the status of a document actually received and filed or recorded for which the fee was not paid? To continue to hold that such a filing is a nullity, as would be the result in the Citron case, supra, 227 Or 330, could provoke unnecessary challenge as to the validity of any document filed by the clerk without the payment of the filing fee. In the Spauldmg case, the county clerk had received and filed a claim of lien but had failed to collect the required filing fee. It was claimed that the filing was, therefore, a nullity.

This court held that when the lien claim was presented for filing the clerk should have refused to have filed it until the fee was paid. But having filed the same the clerk, by reasons of the statute, became personally liable for the fee and that the filing was valid. Such a ruling protects the filed document and the recovery of public funds. The county clerk should refuse to file any document unaccompanied by the fee. But if he does act then the clerk, by statute, is responsible for the fee and the amount thereof deducted from his salary. The opinion in the Spauldmg case distinguishes both Hilts v.

Hilts, supra, and Hart v. Prather, supra, on the valid ground that both eases involved different statutes. They also can be distinguished because they presented different facts and different problems. Citron v. Hazeltine, supra, 227 Or at 334, distinguishes the Spaulding case and clings to the Hilts and Hart cases.

If our appellate procedure had not been changed in 1959, and if the filing fee were still required to be paid, “in advance” to the clerk of this court, and. if the statute had not been amended to provide that only the timely filing of the notice of appeal was jurisdictional (OBIS 19.033 (2) ) then the decision in the Citron case could more nearly be sustained. But the 1959 amendments did radically change the fee paying

schedule to this court. The statute in respect to the payment of the fee to the comity clerk and the transmittal of the fee to the clerk of this court has been before set forth. It is now the burden of the county clerk. When the notice of appeal was tendered to the clerk in the instant case she should not have filed the notice until she received the fee. But she did. Whether she collected the fee or not it was due in this court 10 days later. It would be up to the county clerk to forward the fee here whether she had collected it from the appellant or not. The fee would have to have been paid here regardless.

As so clearly indicated by the facts in this case, the county clerk is only a transmittal agent to forward the fee to this court. The only deadline specified by the statute is the payment to the clerk here. No part of the fee remains with the county clerk. The fee is not paid for any function performed by the county clerk. This is a distinct difference to the former practice when the fee was paid directly to the clerk of this court. The importance of the adoption of such a rule in respect to the numerous documents that are to be filed with the county clerk cannot be overemphasized.

The rule here proposed protects the clerk, for the filing sans a fee can be rejected. It protects the public fund for there is an immediate remedy at hand for the collection of the fee. The statutes can be said to intend that the solution to an unpaid filing fee is not to vitiate the document but to collect the fee from the clerk. The statutes, as before mentioned, indicate that the purpose is to collect the fee, not to govern the validity of documents and that time of payment is secondary to actual payment. Former order dismissing appeal withdrawn. Motion for reconsideration allowed and motion to dismiss denied.