Dissenting Opinion ry
Rhodes, P. J.:The appellant in this proceeding has not been deprived of due process of law merely because he was not the named prosecutor and did not testify before the grand jury; and he has not been burdened with a greater obligation of demonstrating his good faith in the prosecution than if he had appeared before the grand jury, as the majority suggests. Heretofore this Court has noted that costs may be imposed by a petit jury upon persons not named in the indictment and not called as witnesses because such persons are afforded the opportunity to be heard on the rule to show cause. Both the grand jury and the petit jury derive such power to impose costs from the same statute. Act of March 31, 1860, P. L. 427, 19 PS §1222. I see no distinction between this case and those we have decided under similar circumstances except for the jury body involved. I therefore dissent.
It has long been a recognized principle that a court of quarter sessions has inherent discretionary power over imposition of costs. Com. v. Kooher, 23 Pa. Superior Ct. 65, 68; Com. v. Shaffer, 52 Pa. Superior Ct. 230, 232; Com. v. McNabb, 91 Pa. Superior Ct. 582, 584. The principles governing the imposition of costs *352upon the prosecutor apply to both grand and petit juries. “The control of the costs, given to the grand and petit juries, is a discretionary power, subject to supervision by the court.” Com. v. Kocher, supra, 23 Pa. Superior Ct. 65, 68.
“A jury, in imposing costs, may look beyond the endorsement and determine who is the actual prosecutor and place the costs on him: Com. v. Kocher, 23 Pa. Superior Ct. 65; Com, v. McNabb, 91 Pa. Superior Ct. 582.” Com. v. Fisher, 131 Pa. Superior Ct. 117, 120, 198 A. 925, 927.
Where the person named as prosecutor is given a full opportunity to be heard under a rule issued by the court, and the court exercises its discretionary power in reviewing the imposition of costs by the jury, the constitutional requirement of due process is complied with and costs may be imposed on the petitioner as the real prosecutor although he has not been named on the indictment or called as a witness. Com. v. Doyle, 16 Pa. Superior Ct. 171; Com. v. McNabb, supra, 91 Pa. Superior Ct. 582. In the Doyle case, Judge Oelady stated (pages 173, 174 of 16 Pa. Superior Ct.) : “The petitioner had at least a right to a hearing before his liability for these costs could be determined, and to refuse this would be a denial of the constitutional right. . . . After a hearing the court below has discretionary power over the subject, and its decision is not reviewable here [except for abuse of discretion].” In Com. v. McNabb, supra, 91 Pa. Superior Ct. 582, 583, 584, President Judge Porter said: “This appellant was given a full opportunity to be heard, in the proceedings under his rule to show cause and after such hearing the court had a discretionary power over the subject, and its decision can only be reversed upon the ground that it involved a manifest abuse of discretion: Com. v. Doyle, 16 Pa. Superior Ct. 171; Com. v. Charters, 20 Pa. Superior Ct. 599; Com. v. Kocher, 23 Pa. Supe*353rior Ct. 65.” Tlie authorities relied upon by appellant, including Com. v. Madden, 1 Dist. 129, Com. v. Roll, 26 Dist. 1078, for the proposition that costs may not be placed by the grand jury on a prosecutor not named on the back of the indictment unless he is given an opportunity to testify are not controlling, where, as here, this constitutional right was fully afforded appellant. Appellant, although given an opportunity to present testimony showing good faith in instituting the prosecution as a public official, refused and elected to stand on the legal proposition that costs could not be imposed by the grand jury unless he as prosecutor was called as a witness. The hearing on the rule afforded compliance with due process, and the court properly exercised its discretionary power in refusing under the circumstances to set aside the grand jury’s imposition of costs.
The court recognized the policy of the law against imposing costs on public officers “where the prosecution was not unfounded, where there was probable cause for instituting it, and the official has acted in good faith, , . .” Com. v. Shaffer, supra, 52 Pa. Superior Ct. 230, 236. However, Judge McKay pointed out in the opinion for the court that, in the absence of any evidence presented on the rule, it was not clear that appellant acted “solely from public motives in ordering the raids,” and that appellant had “not seen fit to so testify, but asks us to act merely on the presumption that all public officers act from public motives.” The court thereupon concluded that it would not disturb the grand jury’s action as to costs against appellant since that body apparently acted with full information upon evidence before it, and that its return with respect to costs was prima facie valid. Consequently, appellant was favored with no conclusive presumption.
I have given consideration also as to whether the proceeding on the rule to show cause placed an addi*354tional or unwarranted burden of proof upon appellant, and have concluded that it did not. At the hearing on the rule the appellant was subject to no greater burden with respect to producing evidence or testimony on the good faith of the prosecution than he would have had in testifying before, the grand jury. As a practical matter, if appellant had testified before the grand jury and the costs had been imposed upon him, it would appear that he would not ordinarily have had as full an opportunity to demonstrate the foundation for the prosecution, the probable cause for instituting it, and his good faith in so acting as would be afforded him at a hearing on the rule. However, I do not intend that any additional burden be imposed upon- a public official on the rule to show cause; I feel only-that on the rule he is here afforded the same. opportunity to be heard as he would have had in testifying before- the grand jury.
The court gave appellant an unlimited opportunity for a hearing, and carefully weighed the factors before it on the rule to show cause. My review of the court’s order discharging the rule discloses no abuse of discretion or error of law committed by the court..
The order of the court below should be affirmed. ...-.Hirt and Gunther, JJ., join in this dissenting opinion.