First National Bank of Rock Springs v. Foster

CoRN, Justice. Defendant in error brought suit against plaintiff in error upon a lost certificate of deposit. Under the instruction of the court that three-fourths of the jury might concur in and 'return a verdict, a verdict for the’ plaintiff was returned, signed by ten of the jurors, the other two refusing to concur. The defendant below objected to the verdict being received for the reason that it was not unanimous, and therefore not a lawful verdict. The objection was overruled and the verdict entered, and the defendant took its exception. Our Declaration of Rights, Art. 1, Sec. 9 of the constitution provides: “The right of trial by jury shall remain inviolate in criminal cases, but a jury in civil cases in all courts, not of record, may consist of less than twelve men, as may be prescribed by law. Hereafter a grand jury may consist of twelve men, any nine of whom concurring may find an indictment, but the Legislature may change, regulate, or abolish the grand jury system. Section 3651, Rev. Stats. 1899, provides that: “In all civil cases in any of the courts in the State of Wyoming, which shall be tried by a jury, three-fourths of — 163 — the number of the jurors sitting in any such case may concur in and return a verdict in said case, and such verdict shall have the same force and effect as though found and returned by all the jurors sitting in said case; but whenever such verdict is found and returned by a less number than twelve, said verdict shall be signed by each juror concurring therein.” The plaintiff in error insists that the statute is in violation of the section of the constitution above quoted, and this is the only important question presented. No other of the State constitutions, so far as we are advised, contains precisely the same provision as ours, except that of Colorado. But the general question, here involved, has repeatedly been before the courts of this country for consideration, and certain propositions which lie at the threshold of the discussion are well settled. It is conceded that, in almost all of the States, the Legislature may lawfully exercise not only such powers as are specifically enumerated, but that it is invested with the entire legislative power of the State except as restrained by the provisions of the constitution. And our constitution, in line with most of others, Art. 3, section 1, provides that “the legislative power shall be vested in a senate and house of representatives, which shall be designated ‘The Legislature of the State of Wyoming.’ ” It is also so well settled as to require no reference to authorities that, when the constitution secures to litigants the right of trial by jury, the Legislature has no power to deny or impair such right. The courts have uniformly held also that the word “ jury ” as used in our constitutions, when not otherwise modified, means a common law jury composed of twelve men, whose verdict shall be unanimous. As stated by the supreme court of Minnesota: “The expression ‘ trial by jury ’ is as old as magna charta, 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 — 164 — 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 twelve; they must be impartial and indifferent between the parties; and their verdict must be unanimous.” Lommen v. Minneapolis Gaslight Co., 65 Minn., 196. An extended list of the cases is given in the note to State v. Bates., 43 L. R. A., 48. It is unquestioned also that at the adoption of the constitution the right existed in Wyoming as at common law; that is, in felonies and in all common law cases in the district court, our court of general common law jurisdiction, the right was to an impartial jury of twelve men and a unanimous verdict. It is also conceded that the people of the State had the power by their constitution to preserve or abrogate the right, or make such modifications of it and establish such modes of trial as might be deemed expedient. These general propositions being settled, the question before us is to ascertain to what extent the right of trial by jury as above defined, is preserved by the section of the Declaration of Bights above quoted. As to the right in criminal cases, there is no room for construction. The language is express that it shall remain inviolate ; that is, that a person charged with crime has the right as heretofore to demand a trial by twelve impartial men whose verdict must be unanimous in order to support a judgment. In civil cases the language is also express as to the matter of number, one of the three essentials of a jury trial at common law, and the Legislature is empowered to provide by law for juries consisting of less than twelve. There is no room for construction. But there is no specific mention in the section or anywhere in the constitution of the third essential of unanimity. Is it then to be deemed a matter unprovided for, a right not preserved, leaving the Legislature at full liberty to enact such laws upon the subject as it may deem proper, unrestrained by the constitution? We do not think so. — 165 — The whole section must be construed together. The subject of it is the right of trial by jury, and we think the intention of the framers reasonably appears to have been to preserve the right inviolate in criminal cases, and to point out, by way of permission to the Legislature, wherein the common law might be invaded by statute in civil cases. It is as if the constitution had said: “With reference to the right of trial by jury, it is provided that in criminal cases it shall remain in all respects as heretofore. In civil cases it shall remain as heretofore, except that the Legislature may provide for a number less than twelve to constitute a jury.” There is no other reasonable construction, for if a rule is to be applied that the Legislature have power to enact any laws upon the subject unless prohibited in express language, then they may entirely abolish the right and practice of trial by jury in civil cases, for they are not expressly prohibited from so doing. Yet, there appears nowhere in the constitution any intention to abrogate the right or to substitute any other mode of trial. But the form of statement, when viewed in the light of the surroundings, makes it manifest that the intention was to preserve the right. The provision in regard to number is by way of permission, indicating clearly that, in the judgment of the framers of the constitution, permission was necessary. It is also stated as an exception, the word “but ” being used in its very customary meaning of ‘ ‘ except. ’ ’ That it is stated as an exception is also shown by the use of the word ‘ ‘ jury ’ ’ itself. It can not be supposed that the convention were ignorant of the legal meaning of the word, but they must be presumed to have used it in its correct legal sense of a body of twelve impartial men whoso verdict must be unanimous. And it is evident they did so use it. It is so used in the first clause securing the right inviolate in criminal cases. The provision that the number may be less than twelve is clear evidence that the word as used referred to the body universally known to be composed of twelve men. It is permission to the Legislature to make a designated change in the common law jury, to reduce the common law num — 166 — ber, twelve. It is not essential that a prohibition upon the Legislature should be in express terms. It may be by implication. Page v. Allen, 58 Pa. St., 345. It will scarcely be contended that an act would be valid providing for the trial of causes by a jury chosen by the plaintiff, or by the party by whom the jury was first demanded, thus disregarding the element of impartiality. Yet by the argument of counsel there is no prohibition upon such legislation. And it is indeed no more prohibited than a disregard of the element of unanimity is prohibited. Neither is prohibited except by the use of the word “jury,” the plainly implied provision for “trial by jury,” which, as matter of definition, necessarily involve and include both impartiality, and unanimity of verdict. This view is fortified by reference.to the remainder of-the section in regard to the grand juries: “Hereafter a grand jury may consist of twelve men, any nine of whom concurring may find an indictment, but the Legislature may change, regulate, or abolish the grand.jury system.” Here it was deemed necessary, if the grand jury system was to be changed or abolished by law, that the Legislature should have express permission to take such action. But any such permission to change, regulate, or abolish the system of trial by jury is conspicuous by its absence. The reasonable conclusion is that there was no intention to give it, or to permit any interference with the right to the ancient, customary, and familiar mode of trial, except in the one particular pointed out. Some other States adopting constitutions in comparatively recent years have provided for the change in the jury system attempted in the act under consideration. But in every ease, so far as our investigation has extended, the change has been made either by a direct constitutional provision, or by specific authority contained in the constitution empowering the Legislature to make it. Only in Colorado and this State has the attempt been made to accomplish the purpose by legislative enactment without express constitutional sanction. The question — 167 — lias not been directly passed upon' by the Colorado court. Butin Huston v. Wadsworth, 5 Colo., 213, the question was as to the power.of the trial court to refer a common law action without the consent of the parties. And in sustaining the procedure the supreme court of that State say: “Section 23 of the bill of rights, referred to in the appellant’s brief, secures the right of trial by jury in criminal cases, but imposes no restriction upon the Legislature in respect to the trial of civil causes.” Subsequently a bill in substance the same as Section 3651 of our statutes was pending before the Legislature, and upon its being referred to the attorney-general his opinion was that it was in conflict with the clause of the constitution above quoted. Upon a further reference to the supreme court for their opinion, they say that the language of the court, as constituted when the decision in Huston v. Wadsworth was rendered, supports the constitutionality of the act. But under their rule in such cases, they decline either to question or sanction the correctness of that opinion in an <3® jyarfo proceeding. In Be Senate Bill No. 142; 56 Pac., 564. The most that can be said, therefore, perhaps is that the question of the constitutionality of the act is undetermined in Colorado. In order to sustain the constitutionality of this section of the statute, it is necessary for this court to say that there is no right of trial by jury in civil cases under the constitution in this'State, but that each succeeding session of the Legislature may invent and establish any mode of trial that the whim of the hour or any supposed exigencies of convenience or economy might dictate. Under such a ruling it would be competent for the Legislature to provide that the judge of the district should call into court the partisan board of county commissioners and submit to them for decision by a majority vote all civil causes pending in any county. It is perfectly clear that no such revolutionary destruction of ancient landmarks was ever contemplated. The whole tenor of the instrument makes it plain that the ancient method of trial by jury was not — 168 — to be abandoned, but was to be retained and preserved except as designated in the constitution itself, and what the essentials of that method are, is not a matter of construction or conjecture. We think the statute is clearly unconstitutional. It is further objected that no exception was taken to the instruction of the court that three fourths of the jury might return a verdict, and that the defendant must be held to have waived its right. But the receiving and entering of the verdict were objected to, and exception taken to the decision of the court in overruling the objection. This exception brings the question regularly before this court for its decision, and the most that can be claimed is that the erroneous instruction will not be considered as a ground of reversal. The judgment will be reversed and the cause remanded for a new trial. Reversed. Potter, C. J., and Knight, J., concur.