Appeal from decree of Court of Common Pleas of York County, Oct. T., 1972, No. 8, in case of Rita Sexton and Willie Mae Mosley, on behalf of themselves and all others similarly situated v. Clair R. Stine, Clerk of Courts of York County, and the County of York.
Eugene F. Zenobi, with him Alan Linder and J. Richard Gray, for appellants.
Gordon A. Roe, Solicitor for York County, with him Edward H. H. Garber, Solicitor for Clerk of Courts, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.
Appellants were complaining witnesses*fn1 in two criminal assault cases presented to York County Grand
Jury in July of 1972. After considering the evidence, the grand jury dismissed both cases and imposed the costs of prosecution on appellants pursuant to Section 62 of the Act of March 31, 1860, P. L. 427, 19 P.S. § 1222, which provides: "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." Appellants thereupon filed this class action in equity against appellee Clerk of Courts of York County seeking (1) a declaratory judgment regarding the constitutionality of the above statute and (2) an injunction against the enforcement of said statute.*fn2 Subsequently, the County of York was added as a co-defendant. Following the
filing of various other pleadings, a hearing was conducted and the Chancellor filed a decree nisi with an accompanying opinion discussing the merits of appellants' contentions and dismissing the complaint.*fn3 Both parties*fn4 filed exceptions which were dismissed by the court en banc on April 16, 1973. This direct appeal follows from that decree.
Although the lower court's opinion goes to the merits of appellants' constitutional attacks on the statute, we are of the opinion that an adequate legal remedy exists and, therefore, that this case does not lie in equity.*fn5 The legal remedies available to appellants include: (1) petitioning the court for remission of costs and (2) challenging the validity of the statute when the county authorities seek to collect the costs imposed.*fn6
Before discussing these alternative remedies, however, we must deal briefly with a related argument raised in appellants' supplemental brief. Appellants point to our decision in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (1973), as supportive of equity jurisdiction in this case. However, their reliance on Friestad in this regard is misplaced. In Friestad we held that the existence of another remedy not statutorily created does not necessarily preclude a declaratory judgment but is only one factor to be considered by the court "in its discretionary determination of whether a declaratory judgment would lie." ...