The opinion of the court was delivered by
Brewer, J.:The single question in this case is, as to the constitutionality of section 18, page 881, of the General Stat*621utes. That provides in effect, that when upon a trial before a justice of the peace for misdemeanor it shall be found that the prosecution was instituted maliciously, or without probable cause, the prosecuting witness shall be adjudged to pay the costs, and unless a bond is given therefor shall be committed to the county jail until they are paid. It is objected that such an imprisonment would not be upon “ due process of law,” and that it could not be said that the prosecuting witness had had his “day in court.” We do not consider the objections well taken. By coming into court and filing his complaint, he submits himself to the jurisdiction of the justice, and at the same time that the question of the guilt of the person, by his affidavit charged with crime, is tried, his own conduct in the premises is inquired into. True, he is not upon the record as a party plaintiff, or defendant; but the prosecution is instituted at his instance, and he appears upon the record as the complaining party. Many civil proceedings were formerly in the name of the state upon the relation of some one. The party plaintiff was the state, but the relator was none the less within the jurisdiction of the court, and might be reached and concluded by its order. In analogy to those proceedings the legislature has said in substance, that he who files a complaint for misdemeanor shall bring both himself and the defendant into court. It is true also, that no formal accusation is presented against the complainant upon which he is tried and found guilty, and that the first written statement of his wrong is in the finding and order; but the same is equally true in many cases in commitments for contempt. There, often the first writing is the order of the court committing the offender for the contempt. The proceeding is summary; but it is clear, that it is due process of law, and that the offender has had his day in court. Indeed, it may well be considered that he who maliciously, or without probable cause, invokes the process of a court to oppress and wrong an innocent party, by placing him under arrest and upon trial for violation of law, is guilty of a contempt of court. He has by his own wrong sought to prosti*622tute the powers of the court to the injury of another; and that is conduct which merits, as it receives, the censure of all courts, and the condemnation of all persons.
Again, it is said that this is in conflict with section 16 of our bill of rights. “No person shall be imprisoned for debt except in cases of fraud.” But these costs are cast upon him as a penalty — they do not constitute strictly and simply a debt, in the technical sense of the word, any more than the fine imposed upon a party convicted of assault and battery, is a debt. The legislature has in eifect declared that an unwarranted appeal, in this class of eases, to the criminal law, is itself a violation of law, and subjects the offender to punishment; and the penalty imposed is the costs of the unwarranted proceedings. Shields v. Comm’rs of Shawnee County, 5 Kas. 590; State v. Donnell, 11 Iowa, 452; State v. Darr, 63 N. C. 516.
The order of the district judge will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.