Francis v. Baker

This is an action of assumpsit upon book account and upon divers notes and checks. The action was commenced in the Court of Common Pleas, and was there referred to an auditor, whose report in favor of the plaintiff was confirmed at the June Term, 1870, and judgment thereon was entered for the plaintiff for $13,512.46. Thereupon a jury trial was had, which resulted in favor of the plaintiff; and the case was appealed. At the trial in this court the plaintiff offered to read the report of the auditor as evidence; and the defendant objected to its admission on the ground that the statute under which the case was referred to the auditor was contrary to the Constitution of this state, and of the United States, inasmuch as it impaired the right of trial by jury as secured by the Constitution of this state and the Constitution of the United States. But the court ruled that the auditor's report was admissible, and permitted it to be read as evidence. To this ruling the defendant reserved an exception. The court also, in its charge to the jury, instructed them that the report was prima facie evidence of the plaintiff's claim, and entitled him to a verdict in the absence of evidence to the contrary of it. And the defendant excepted to this instruction. The act under which the case was referred was passed in 1867. The act provides that "when a cause is at issue in the Supreme Court or Court of Common Pleas, if the form of action be assumpsit, debt, covenant, or other form of action in any way involving accounts, the court may in its discretion appoint one or more auditors," c. The act further provides for a trial by jury on demand, after confirmation of the auditor's report and judgment thereon, "in which trial," the act proceeds to provide, "the report shall be prima facie evidence of all matters expressly embraced in the order." The statute now in force is substantially the same. Gen. Stat. R.I. cap. 204, § 10 et seq. The clause in *Page 107 the Constitution of the state with which the act is supposed to be in conflict is art. 1, § 15. It reads as follows, viz.: "The right of trial by jury shall remain inviolate." The statute in force previous to 1867 contained no provision for a jury trial, being, in that respect, more obnoxious than the statute under consideration. It was, however, somewhat less comprehensive than the act of 1867, being confined to actions relative to partnerships and joint accounts, and to actions involving matters of book account. This statute first appears in the Digest of 1844. Previous to that time, and previous to the adoption of the Constitution, the courts had power to appoint auditors only in actions of account, and in actions on the case between partners. The act of 1867 and the statute now in force are very similar to statutes which have long been in force in Massachusetts and New Hampshire, — the statute in Massachusetts having existed since 1817, and the statute in New Hampshire since 1822. The reports of these states contain many cases involving the construction of those statutes, but none that we are aware of in regard to their constitutionality. The Constitution of Massachusetts, adopted in 1780, and that of New Hampshire, adopted in 1792, both expressly declare the sacredness of the right of trial by jury. The fact that the statutes referred to have so long existed without any impeachment of their constitutionality is strong evidence of the prevalence of a belief in those states that they could not be successfully impeached. It is a fact which admonishes us not to pronounce our own statute unconstitutional without the most careful deliberation. In Vermont an act was passed in 1856 authorizing any county court to refer any civil action pending therein to a commissioner or commissioners, and providing that the commissioner's report should be prima facie evidence upon a trial of the action before a jury. In Plimpton v. Somerset, 33 Vt. 283, an action to recover damages resulting from the insufficiency of a highway was referred under this act. The commissioner reported in favor of the plaintiff, and his report was allowed to go to the jury asprima facie evidence, an exception to the ruling being reserved by the defendant. The defendant contended in support of his exception that the act of 1856 was unconstitutional, being in violation of *Page 108 the declaration in the Bill of Rights, which reads as follows: "Where any issue in fact proper for the cognizance of a jury is joined in a court, the parties have a right of trial by jury, which ought to be held sacred." The Supreme Court of Vermont, in a carefully considered opinion, the case having been twice argued, declared the act to be unconstitutional. The ground of the decision was, that under the act a case would go to the jury prejudged in favor of the party for whom the report was rendered, the jury being bound by the report in the absence of testimony to impeach its correctness. There is no trial by jury, the court argues, if the decision of the jury is to be controlled by the judgment of some other body; and if it be only partially so controlled, yet, so far as it is controlled, the right is impaired. We refer to the opinion as a forcible presentation of the argument against the constitutionality of that and other similar acts. The counsel for the plaintiff contends that the act does not affect the right of trial by jury, but simply prescribes a new rule of evidence which the legislature has the power to do. The legislature has such a power without doubt. Acts by which a tax deed is made prima facie evidence of the regularity of all proceedings antecedent to the deed, have been declared to be constitutional. Hand v. Ballou, 12 N.Y. 541; Delaplaine v.Cook, 7 Wis. 44; Allen v. Armstrong, 16 Iowa, 508; Wright v. Dunham, 13 Mich. 414. These acts bear some analogy to the act under which this case was referred. But there is a difference. A tax deed is the last of a series of official acts constituting a tax title. The legislature says, this last act being proved, the others may be presumed. This, inasmuch as the last act without the prior acts is a nullity, is merely requiring the jury to infer, in the absence of testimony to the contrary, that an officer in assuming to perform an official act is acting in the line of his duty. The act required to be taken as primafacie evidence is in the nature of evidence. The report of an auditor is, properly speaking, not evidence, but a decision. The act declaring it prima facie evidence declares its effect as a decision, and, in so far as it gives it effect, substitutes the judgment of the auditor for that of the jury. If the report were made conclusive evidence the substitution would be complete, and would without doubt be unconstitutional. See Rhines v. Clark, 51 Pa. St. 96. *Page 109 Is the substitution, because incomplete, constitutional? Is it not still an encroachment upon the province of the jury? Cases may easily be supposed in which the report might almost or quite as well be conclusive as prima facie evidence. Suppose the testimony all came from the plaintiff's witnesses, and the defendant relied on his cross-examination to discredit them. If the report were in favor of the plaintiff how could the defendant disprove it? He would certainly be at great if not fatal disadvantage. But again, if the legislature can make the report of an auditor prima facie evidence, why not the judgment of any other tribunal? Why, for instance, can it not make the decision of a trial justice prima facie evidence in the trial, on appeal, before a jury, and at the same time extend the justice's jurisdiction to cases involving large amounts? It will hardly be contended that the legislature has the power to do this. But if not, how has it the power to pass the act under consideration? The exercise of the power may be unwise in the one case and wise in the other. But the question is not a question of wisdom but of constitutionality. The question is, whether the right of trial by jury under the act is the same as it was prior to the act, — whether it remains inviolate. The right of trial by jury is the right to have a jury hear and decide upon evidence the issues of fact which they are empanelled to try. Is not this right impaired if the jury is required to decide, without hearing the evidence, it may be, according to the report of an auditor; or, in case the evidence is submitted, is still required to decide according to such report, unless the evidence against it is clear enough to convince them that it is probably erroneous, and even though, independently of such report, it might decide the case another way? We are constrained to the conclusion that the right is impaired or violated when the minds of the jury are or may be so trammelled and controlled If such legislation were new to American jurisprudence, we should have little hesitation in coming to this conclusion. The fact that the constitutionality of similar acts long existing in other states has not been questioned is a fact which cannot be disregarded. The fact however is not decisive. An unconstitutional act which is not too often used, and which when used works well, may be long tolerated without question. In our own state the act contained in the Digest of 1844 which was in force *Page 110 many years, created little or no dissatisfaction, for the reason probably that it was very seldom applied in any case where either party strongly objected. We think the decision in Vermont, which coincides with our own opinion, is to be followed, rather than the practice under the several acts referred to which is against it. The plaintiff calls our attention to the fact that the case was referred to an auditor by agreement. We do not see how that makes any difference. An agreement to refer a case to an auditor is not an agreement that his report may be used as evidence in the trial of the case to the jury, if the provision of the statute making it evidence is void. We grant a new trial. The new trial thus granted took place at the October Term, 1875, for the County of Providence, and resulted in a verdict for the plaintiff, his damages being assessed by the jury at $15,904.61. The defendant then filed another petition for a new trial. The reasons alleged for this petition are stated in the opinion of the court.