Lommen v. Minneapolis Gaslight Co.

MITCHELL, J.

The only question presented by this appeal is the •constitutionality of Laws 1895, c. 328, entitled “An act to provide for struck juries,” etc. This was merely a re-enactment of Laws 1864, c. 31 (G. S. 1878, c. 71, §§ 15-19), which had been repealed by Laws 1891, c. 84.

The essential provisions of the act are as follows: Whenever a •struck jury is deemed necessarv by either party for the trial of the issue in any action in the district court, he may file with the clerk •of the court a demand in writing for such a jury; whereupon the clerk shall forthwith deliver a certified copy of such demand to the ■sheriff, who shall give both parties four days’ notice of the time of striking the same. At the time designated, the sheriff shall attend at his office, and in the presence of the parties or their attorneys, or such of them as attend, shall select, from the number of persons •qualified to act as jurors in the county, 40 such persons as he shall think most indifferent between the parties, and best qualified to try •such issue; and then the party requiring such jury shall first strike off one of the names, and the opposite party another, and so on alternately until each has struck off 12. If either party shall not attend in person or by attorney, the sheriff shall strike off for him. When •each party has thus struck off 12 names, the sheriff shall make a copy of the remaining 16 names, and certify the same to be the list of .jurors struck for the trial of the cause, and deliver the same to the clerk of the court, who shall thereupon issue and deliver to the sheriff a venire with the names in said list annexed thereto; and thereupon the sheriff shall summon the persons named according to the command of the writ. Upon the trial of the cause, the jury *207 so struck shall be called as they stand on the panel, and the first 12 of them who shall appear, and are not challenged for cause or set aside by the court, shall constitute the jury, provided that, if enough do not appear for the trial of the cause, the court shall cause tales-men to be called, as in other cases. The act provides, however, that if the sheriff is interested in the cause, or is related to either of the parties, or does not stand indifferent between them, the judge may/ name some judicious and disinterested person to strike the jury, and perform all things required to be done in the premises by the sheriff. The jury must be struck at least six days, and the venire served at least three days, previous to the term of court at which the action is to be tried. The party demanding the struck jury is required to pay the fees for striking the same, and the mileage and per diem of the jurors, and shall not have any allowance therefor in the taxation ■of costs. The provisions of the act do not extend to the trial of any indictment for any offense where the defendant is entitled to two or more peremptory challenges.

The grounds upon which it is claimed that this act is unconstitutional are (1) that it is in conflict with section 4 of the bill of rights of the constitution,4 which provides that “the right of trial by jury shall remain inviolate”; (2) that it is in conflict with the provisions ■of section 8 of the bill of rights, that “every person * * * ought to obtain justice freely and without purchase”; (8) that it is class legislation, and unequal in its operation, and therefore obnoxious to the spirit of the constitution; (4) that it is against public policy, ■contrary to the American system of jury trial, and liable to become •“an engine of oppression and a vehicle for the corruption of justice.”

Inasmuch as the legislature is a co-ordinate branch of the government, the courts do not sit to review or revise their legislative action; and hence, if they hold an act invalid, it must be because the legislature has failed to keep within its constitutional limits. A court has no right to declare an act invalid solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guarantied nr protected by the constitution. Except where the constitution has *208 imposed limits upon the legislative power, it must be considered as practically absolute. The courts are not the guardians of the rights of the people, except as these rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against, and remedy for, unwise or oppressive legislation, within constitutional bounds, is by appeal to the justice and patriotism of the people themselves, or their legislative representatives. Neither are coui*ts at liberty to declare an act void merely because, in their judgment, it is opposed to the spirit of the constitution. They must be able to point out the specific provision of the constitution, either expressed or clearly implied from what is expressed, which the act violates. Moreover, courts will never declare a statute invalid unless its invalidity is, in their judgment, placed beyond reasonable doubt. Cooley, Const. Lim. c. 7.

In view of these principles, which are elementary, counsel’s third and fourth objections present considerations which should mainly, if not entirely, be addressed to the legislature. They involve nothing of judicial cognizance, unless it be the question whether the provisions of the act are what, in a constitutional sense, is known as “class legislation.” The act, however, is not obnoxious to that objection. Its provisions apply alike to all litigants. The right to avail himself of them on the same terms is open to every one. It is true that it is not every litigant that may be financially able to avail himself of that right. That is a consideration that may go to the fairness or justice of the law, but not to its constitutionality. There are a great many laws of whose privileges many persons, because of their financial condition, are unable to avail themselves; but it was never heard that this fact alone rendered an act obnoxious to the constitution, as being class legislation.

Neither is there any merit in the point that the act is in violation of the constitutional provision that every one “ought to obtain justice freely and without purchase.” This is as old as Magna Charta, and has a well-understood historical meaning. It was aimed against the corrupt practice of taking bribes and exacting illegal fees in the administration of justice, and never meant that a litigant should have the right to conduct his suit in court without cost. At common law, every suitor bought his writ, and had to pay the cost of every ministerial act done at his request as the cause proceeded. *209 Costs and fees imposed on suitors to defray the expenses of courts might he made so great as to be unreasonable, and to result in a practical denial of justice, and for that reason be unconstitutional. Where the limit is we need not now inquire, for the party who demands a struck jury cannot complain, for he voluntarily incurs the expense, and the opposite party has no ground for complaint, because it costs him nothing, and cannot be taxed against him as costs, even if he proves to be the losing party. v/

Therefore, the only remaining question is, does the act under consideration violate the provision of the constitution that “the right of trial by jury shall remain inviolate”?

What is “trial by jury” to which the constitution refers? The constitution nowhere defines it. The question is an historical one, for an answer to which reference must be had to “jury trial” as known at common law and as it existed in the territory of Minnesota at the time of the adoption of the constitution. From Whallon v. Bancroft, 4 Minn. 70 (109), down to its latest utterance on the subject, this court has always held that the effect of this clause 'in the constitution is — First, tp recognize the right of trial by jury as it then existed in the territory; and, second, to continue such right unimpaired and inviolate. In all former cases the question was, in what cases are parties entitled to a trial by jury? And the answer has always been', in those cases in which they were entitled to jury trial by the laws of the territory at the time of the adoption of the constitution.

The question in the present case is, what is a trial by jury, within the meaning of the constitution? The expression “trial by jury” is as old as Mágna Oharta, and has obtained a definite historical meaning, which is well understood by all English-speaking peoples; and, for that reason, no American constitution has ever assumed to define it. We are therefore relegated to the history of the common law to ascertain its meaning.

The essential and substantive attributes or elements of jury trial are and always have been number, impartiality, and unanimity. The jury must consist of 12; they must be impartial and indifferent between the parties; and their verdict must be unanimous. It cannot be claimed that the act under consideration affects either the first or third of these essential attributes of a jury trial. If it affects *210 any of them, it must be the second, viz. impartiality. The mode of selecting the jury is only a means to an end, and only goes to the question of impartiality. No court ever held or intimated that, in order to preserve the right of trial by jury “inviolate,” it is necessary to continue the particular method of selecting jurors in force at the time of the adoption of the constitution. On the contrary, it has always been held that the method of selection is entirely within the control of the legislature, provided only that the fundamental requisite of impartiality is not violated. Perry v. State, 9 Wis. 19; Proffatt, Jury, § 106. No case is cited, and we think none can be found, to the contrary. Our own legislation, general and special, enacted since the adoption of the constitution, changing the mode of selecting jurors, is a witness to the correctness of this proposition; and, if the mode adopted provides for the selection of the jury with substantial fairness, a court would have no right to declare the act unconstitutional merely because, in its judgment, some other method would be better calculated to secure impartiality, at least when the mode adopted was one previously known to and recognized by law as a proper mode of selecting a jury.

The objections urged by counsel to the mode of selecting jurors provided by the struck-jury act are — First, that it eliminates the element of lot or fortuity; and, second, that it deprives the party of the right of peremptory challenge.

As already suggested, these are not essential or substantive elements of a jury trial, but merely means of securing one of those elements, viz. impartiality. Fortuity in the selection of a jury was unknown at common law, the panel being selected by the sheriff from his list of freeholders; and it was not until 3 Geo. II.5 that he was required to select a panel for the trial of all causes at the assizes,. instead of, as previously, a separate panel for the trial of each separate case. This mode of selection was subject to the objection that it opened the door for jury-packing by the sheriff. Hence most of the American states have long since taken the selection of jury lists out of the hands of the sheriff, and placed it in the hands of other ■officers or bodies, such as the selectmen of the towns, town supervisors, county commissioners, county courts, or certain officers con *211 stituted a board for that purpose; and, as an additional means of insuring impartiality, they have introduced an element of lot in selecting from the jury lists those who should constitute the panel for the term, and, again, in selecting from this panel those who should compose the jury for the trial of a particular cause. It is likewise true that most of the American states have, as an additional means of securing impartiality, permitted a limited number of peremptory challenges in civil causes, the object of which, doubtless, was to give a party an opportunity to strike off a juror whom he suspected of prejudice, but without being able to give sufficient reasons for his exclusion for cause. The right of peremptory challenge in civil causes was unknown to the common law, and does not exist in England even at the present day. But it will be found that even under these modern statutes there is no element of fortuity in selecting the original jury list, but only in subsequent selections from that list; also, that if, by reason of challenge or otherwise, there is not a sufficient number of jurors for the trial of a cause, the court has the power to direct the sheriff to summon bystanders, or to issue to the sheriff a special venire, directing him to return an additional number of jurors from the body of the county; also, that in courts, such as justices’ courts, where a jury is only wanted occasionally and at irregular intervals, it has usually been provided that the jury should be selected substantially in the manner provided in our struck-jury act, which involves no element of fortuity, and when there is no right of peremptory challenge eo nomine. This is, and at the date of the adoption of the constitution was, the mode of selecting a jury in justice’s court in Minnesota. It was the mode prescribed for selecting a jury in the county court by the act under consideration in Perry v. State, supra.6

Special or struck juries were well known to the common law, their origin being so ancient that its date cannot be ascertained. As early as 8 Wm. EX a rule as to the manner of striking such a jury provided that if one party came, and the other did not, “he that appears shall, according to the ancient course, strike out twelve, and the master shall strike out the other twelve for him that is absent.” Anonymous, 1 Salk. 405. See, also, King v. Edmonds, 4 Barn. & Ald. 471. *212 The main object of special juries was protection against packed or incompetent common juries. Blackstone states the mode of procedure for selecting a special jury as follows: “Upon motion in court and a rule granted thereupon [the sheriff is required] to attend the prothonotary or other proper officer with his freeholders’ book, and the officer is to take indifferently forty-eight of the principal freeholders, in the presence of the attorneys on both sides, who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel.” 3 Bl. Comm. 357. This, it may be suggested, is the model after which all the American special or struck jury acts have been framed. Indeed, it would perhaps be more accurate to say that these statutes are merely declaratory or amendatory of the common law on the subject; and, as respects the mode of selecting a special jury, the essential feature of all of them is that a list (generally from 40 to 48) of persons qualified to serve as jurors is selected from the body of the county by some officer who is impartial between the parties, and from this list the parties alternatively strike off a name, until the list is reduced to a specified number, and the jury for the trial of the cause is taken from such of the remainder as are not challenged for cause. It will be observed that the element of lot and the right of peremptory challenge were entirely wanting at common law in the selection of a special jury. It will also be found that the same is true of all the American statutes, except that in New York and Pennsylvania it seems that, under comparatively recent statutes, a limited right of peremptory challenge is given.

We regret that time has not permitted us to make anything like a complete examination of the legislation in this country on the subject of special or struck juries. We have found nothing on the subject in the New England states, but the Middle and Southern states seem generally to have recognized special juries as an existing common-law institution, and to have commenced to regulate it by statute at an early day. Thus, in 1801, New York enacted (Laws 1801, c. 98, § 22) that “no struck jury shall be allowed unless on the order of the court when they may deem it necessary by reason of the importance or intricacy of the case,” which is evidently intended to- be restrictive of an existing and well-known common-law right. This statute was amended in 1829, and again in 1857, so that it now reads: “Wliere it appears to the court that a fair and impartial trial * * * can *213 not be had without a struck jury, or that the importance or intricacy of the case requires such a jury, the court must make an order,” etc. 2 Rev. St. 1829, pt. 3, c. 7, tit. 4, art. 3; 2 Bliss’ Code 1890, § 1063. Delaware has had a statute providing for special juries at least since 1852 (Rev. Code 1852, c. 109, § 16); Pennsylvania, since 1785 (1 Pepper & Lewis’ Dig. 2517). In the latter state, however, under what they call a common law of their own, no special venire is issued, but the jury is struck from the general venire issued for the term. McDermott v. Hoffman, 70 Pa. St. 31. In Maryland all juries seem to be, in a modified form, “struck.” They select a list of 20 from the panel, and ■each party strikes four names from the list, and the remaining twelve constitute the jury. Code 1860, art. 50, § 7; Code 1878, art. 62, § 12. Virginia has had a statute, at least since 1849, authorizing the court, except in cases of felony, to allow a special jury; but in that state 18 out of a list or panel of 24 are chosen by lot, and the parties strike from the 18 until it is reduced to 12, who constitute the jury. Code 1849, c. 162, § 8; Code 1860, c. 162, § 25. In Georgia the statutes have provided for struck juries ever since 1799. The peculiarity in that state is that the grand jury list is taken as the list from which the parties strike off names. Acts 1869, No. 127, § 6; Code 1882, § 3925; Winter v. Muscogee R. Co., 11 Ga. 438; Walker v. Bivins, 57 Ga. 322. The statutes of Alabama have provided for struck juries at least since 1852 (Code 1852, § 2264; Code 1876, § 3018); also of Arkansas, as early as 1837 (Rev. St. 1837, c. 85, § 18); also Missouri, at least since 1872 (Wag. St. 1872, c. 80, § 23; Rev. St. 1879, § 2802).

Turning now to the states formed out of the Northwestern territory, of which Minnesota was a part, we find that, as early as 1824, Ghio passed an act providing for struck juries, which, as're-enacted in 1831 and amended in 1853, is identical with that of Minnesota. St. 1841, c. 64, § 22; Swan’s Rev. St. 1854, c. 62, § 30; Rev. St. 1880, § 5185. Indiana has had statutes on the same subject at least since 1861 (Acts 1861, c. 22; 2 Gavin & H. St. Ind. 1862, pt. 2, c. 1, § 310; Laws 1881, c. 38, § 359; Rev. St. 1881, § 525; Rev. St. 1894, § 534); also Michigan, since 1827 (2 Terr. Laws, p. 471, § 16; Rev. St. 1838, pt. 3, tit. 2, c. 5, § 19; How. Ann. St. 1882, § 7585). As both Wisconsin and Minnesota were originally part of Michigan, it would seem that the struck-jury act of that state continued to be the law •of Wisconsin until the latter state passed another act on the subject," *214 in 1889, and continued to be tbe law of Minnesota until tbe adoption of the Revised Statutes, in 1851. Wisconsin passed a struck-jury act in 1889, which is substantially the same as that of Minnesota. Laws 1889, c. 268 (2 Sanb. & B. Ann. St. § 2544s).

Under all of these statutes, except where we have mentioned the differences, the method of selecting the jury was, in all essential particulars, the same as under our statute, and as at common law in England. Most, if not all, of these statutes, were enacted in the several states after the adoption of their constitutions, containing the same or similar provisions as to the right of trial by jury which are contained in the constitution of Minnesota; and yet, until in the present case, the constitutionality of these statutes has never, so far as we can discover, been even questioned, except once in Missouri, when the constitutional objections to the act were very promptly overruled. Vierling v. Stifel Brewing Co., 15 Mo. App. 125. The courts and the bar everywhere seem to have assumed that the constitutionality of such laws was beyond question. This act was first passed in 1864, less than seven years after the adoption of the constitution, and remained on our statute books unchallenged for twenty-seven years. Struck or special juries, and the present mode of selecting them, had been known to and recognized by the law, as being in ac-' cordance with the common-law right of trial by jury, for ages before the adoption of the constitution of this state. It is rather late in the day to discover the unconstitutionality of such acts; and it would certainly require great temerity for courts now to assume to have discovered some new ground on which to hold them invalid.

But, even if the question was one of first impression, we do not see why the act does not provide a method of selection sufficient to secure substantial impartiality. If the sheriff does not stand impartial between the parties, tbe judge may (shall) appoint some judicious and disinterested party to make the list; and, if a showing was made that furnished any reasonable ground for believing that the sheriff was not entirely impartial, it would be error for the court to refuse to appoint some one else to act in his stead. Moreover, if the sheriff selected a partial or unfair list, — as, for example, largely of the personal friends or neighbors of one of the parties, or persons who, from business interests, were presumably biased in favor of one side of the issue to be tried, — we have no doubt of the power, as well as duty, *215 of the court to set aside the list, on motion analogous to the old motion to quash the array. If the list is honestly selected, it would seem that, under the right to strike off 12, it could be purged not only of all that could be successfully challenged for cause, but also of all even suspected of bias. But, if not, the party has at least six days after this, and before trial, in which to investigate the remainder, and his right of challenge for cause at the trial is still unlimited. Counsel has much to say about abuses that have grown up by reason of collusion between dishonest litigants and friendly or corrupt sheriffs; but,, if such abuses have grown up, this is an argument to address to the legislature, rather than to the courts. All laws are subject to be abused by corrupt and dishonest men.

The most serious objection to the policy of the law (although not urged by counsel as of itself any ground for holding the law unconstitutional) is that it gives a party an absolute right to a struck jury without cause shown. But, whatever may be said of the propriety or policy of this feature of the act, we cannot see how it infringes upon the constitutional right of trial by jury, provided the act still leaves an impartial jury between the parties. If this is a valid objection to the constitutionality of the act, it would obtain against many of the struck-jury laws in other states; and yet we have not been able to discover that such an objection was ever even suggested. At common law, while an order and rule of court were required, yet the rule for a struck jury was made as of course on the motion of the party, and without any cause shown; and we do not discover that this was ever changed by statute in England, at least prior to the American Revolution. The first statute in that country on the subject of struck juries appears to have been 3 Geo. II. c. 25. That act was passed to remove a doubt that had arisen as to the power of the courts of law at Westminster on a matter not here material; but the language of the act is: “The said courts are hereby respectively authorized and required upon motion as aforesaid in any of the cases before mentioned to order and appoint a jury to be struck,” etc. Section 2, c. 37, 6 Geo. EE., was in the nature of a special act for the counties palatine of Chester, Lancaster, and Durham, authorizing the justices of the session or assizes in those counties, in their discretion, to order and appoint a jury to be struck. Chapter 18, 24 Geo. II., requiring a party calling a struck jury to pay the jurors’ fees, as *216 well as the cost of striking the jury, and providing that he should not be entitled to any more costs than if the case had been tried by a common jury, was intended to prevent parties from calling struck juries unnecessarily in small and trivial cases, and indicates that a party had a right to such a jury as of course, and not merely in the discretion of the court, or upon cause shown. In this country a number of the states have by statute restricted this common-law right to a struck jury, and provided that such a jury should be allowed only in the discretion of the court or upon certain cause shown. This was, and still is, the law in New York, Michigan, and a number of other states. But in Delaware, Pennsylvania, Georgia (until 1869), Alabama, Ohio (since 1853), Indiana (at least since 1861), Missouri (since 1879), and Wisconsin (since 1889), a party is or was entitled to demand a struck jury as a matter of right without showing any cause. In Pennsylvania, in 1789, in order to prevent defendants from calling for special juries merely for delay, it was provided that, except in cases involving the title to real estate, no rule for such a jury should be entered on the defendant’s application, unless he filed an affidavit that he believed that there was a just and legal defense to the plaintiff’s demand. Dunl. Laws Pa. 1700-1849, c. 95.

In view of such a consensus of opinion on the part of the legislatures, and impliedly of the courts and bar, of the country, that statutes of this kind do not impair the common-law right of trial by jury as known and understood in American constitutional law, we would not be warranted in holding this act unconstitutional. With the policy of the law we have nothing to do. If conditions have so changed that it results in abuses such as counsel suggest, the remedy is with the legislature.

Judgment affirmed.

Const, art. 1.

C. 25.

Priv. Laws 1858 (Wisconsin) c. 7.