State ex rel. St. Louis, Keokuk & Northwestern Railway Co. v. Withrow

Sherwood, J. The foregoing pleadings supplemented by statutes to be presently quoted, tender the issue, and form the basis on which this cause is to be determined. Section 29, referred to and relied on by respondent in his return as justifying and validating rule 37, is the following: “ In every city in the state of Missouri, having over one hundred thousand inhabitants, all courts of record in which juries are required shall have power, upon the application of either party, to order a special jury for the trial of any cause, if the application be made at least three days before the trial, and when ordered, the jury commissioner, as he may be directed by the court, shall select and furnish to the proper officer of said courts the names of the persons to be summoned for such special jury, and said officer shall summon them according to the order of the court, and make out and deliver to each party, or his attorney, a panel of the jury so summoned; but the costs of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the costs of the special jury shall be taxed as other costs against the losing party. — 512 — The provisions contained in sections 17, 18, 19, 20, 21, 23, 24, and 25 of this act, in relation to the summoning and service of common jurors and to the duties and liabilities of persons in said sections respectively mentioned, and to the penalties in said sections respectively provided for in respect to common juries, shall, in like manner, be construed to apply also to the summoning and service of special juries, as by this section provided for.” R. S. 1889, p. 2169. As seen by the statement therein, the act which section 29 formed was passed March 17, 1885,'and is now to be found 2 Revised Statutes, 1889, p. 2169, as well as on pages 74, 75, Laws, 1885. The sections referred to therein are sections tobe found in the Laws of 1879, pages 28 to 37, approved April 11, 1879, which contain sections 1 to 29 inclusive, and the act of 1885 was amendatory of the act of 1879, and refers to some other sections of that act, which act is to be found in 2 Revised Statutes, 1889, pages 2160 to 2170 inclusive, substantially as enacted in 1879, with the exception of section 29 aforesaid. The act of 1879 until amended by the act of 1885 aforesaid, related solely to common juries, providing, as it does, for a canvass of the city, and the ascertaining by personal inquiry, etc., every person qualified in the city for jury duty, save those who are otherwise excluded or excused by the act. A clause in section 8 of the act designates wlm shall be enrolled: “And every male citizen of this state resident in such city, sober and intelligent, of good reputation, over twenty-one years of age, and not. exempt from jury duty by the general laws of this state, or otherwise disqualified or excused as provided in this-act, shall be deemed to be qualified for and subject to-the performance of jury duty under the provisions, hereof.” — 513 — Section 16 of the act makes provision for drawing the names of those who have been enrolled from the wheel, a method, as will readily be seen by reference to-that section, which wholly precludes any possibility of arrangement or selection of the names of those to be thus drawn. This section, at the time of the enactment of the act of April 11, 1879, was only intended for the drawing of common juries. No part of the act as it then stood having any reference or making any mention of special juries. With matters in this posture,, the act of March 17, 1885, was passed. It is specially noteworthy of section 29 of that act, heretofore quoted, that it makes a distinction in terms-between a special jury and common jurors, and while it. retains certain specified sections used for the purpose of the “summoning and service of common jurors,” yet it wholly and very significantly omits to mention or allude to section 16, supra, which is the one alone which describes and prescribes the method to be employed by the commissioner when he draws the names of common jurors from the wheel. This omission, after such specific mention and enumeration of eight other sections of the same act, invites and justifies the application of the maximexpressio unius, etc., or affirmative specification excludes implication. Dwarris on Stat. 605; Maguire v. Savings Ass’n, 62 Mo. 344; State ex rel. v. Laughlin, 73 Mo. 443; Ex parte Snyder, 64 Mo. 58; State ex rel. v. Woodson, 128 Mo. loc. cit. 514. At the same session of the legislature at which the act of April 11, 1879, was passed, it being revising session, another act was passed which was a general law giving all parties the right to a special jury, upon certain conditions being complied with, which act still remains in force and is the following: “Either party to a cause pending in the circuit, court or court of common pleas or criminal court of — 514 — any county, and triable by a jury, shall be entitled, as of course, to an order for special venire on motion made therefor, three days before that on which the case is set for trial; but the cost of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the ease was one for the trial of which a special jury should have been ordered, in which case the costs of the special jury shall be taxed, as other costs, against the losing party. This section shall apply to cities having over one hundred thousand inhabitants, as fully as to all other parts of the state.” R. S. 1879, sec. 2802.• This section just'quoted is the same (so far as material to note) in the revision of 1889, section 6089, ■except that the number of inhabitants is raised to three hundred thousand. There can be no question that this section applies to the city of St. Louis, because we take judicial notice of the fact that that is the only city in this state having such population. State ex rel. v. Herrmann, 75 Mo. 340, and cases eited; State ex rel. v. Wofford, 121 Mo. 61. It follows from the foregoing that section 2802, Revised Statutes, 1879, now section 6089, Revised .'Statutes, 1889, must be construed in connection with section 29, Revised Statutes, 1889, page 2169, :and as forming part and parcel of the same law, and as being in pari materia (Sutherland, Stat. Con., secs. 284, 288), saying nothing about section 6089 making direct reference to cities of the class of St. Louis. In our earlier statutes, Revised Statutes, 1835, 1845, 1855, and 1865, it appears to have been optional with the trial court whether an order for a special jury should go, but under statutory provisions existing from the revision of 1879, the party applying for such jury, — 515 — upon complying with, the statutory conditions, is entitled thereto as a matter of right. And so it has been ruled by this court when passing on section 2802, that if timely application be made under its provisions for a special jury, the trial court has no discretion to refuse such request. State v. Leabo, 89 Mo. 247. Such was the adjudged state of the law when the revision of 1889 occurred, which incorporated therein all of the provisions of the act of April 11,1879, touching common juries, together with the amendment made by the act of March 17, 1885, relating to special juries, as well as section 2802, Revised Statutes, 1879, now section 6089, which also relates to special juries over the whole state as well as to juries of that sort of cities of the population of St. Louis. And the legislature having received the statutes of this state in 1889, and remcorporated a section which it had been adjudged left a circuit court no discretion when asked for a special jury, it must be presumed that the legislature was familiar with that ruling, and, by retaining that section as it stood in the revision of 1879, intended that it should continue to bear the meaning given to it by this court; and by changing the number of inhabitants in cities to which it applied to “over three hundred thousand inhabitants” it will be presumed also that the legislature intended to embrace the city of St. Louis within the terms of the amended section as much so as if that city had been directly named. Special juries as contradistinguished from common juries have received legislative recognition and sanction in this state from an early period of its history. Thus in Revised Statutes, 1835, appears this section: “Sec. 14. Thecourt shall have power to order a special jury for the trial of any civil cause; in such case the sheriff shall summon eighteen jurors, according to the order of the — 516 — court, and make out and deliver to each' party or his attorney, a list of the jury so summoned, and each party shall have the right to strike off three of the names on such list.” R. S. 1835, p. 343. Such recognition and sanction have been repeated at every revision of our laws ever since, as witness: R. S. 1845, p., 628, sec. 14; 2 R. S. 1855, p. 912, sec. 24; Genl. Stat. 1865, p. 599, sec. 23; 1 R. S. 1879, sec. 2802; 2 R. S. 1889, sec. 6089; Ib., p. 2169, sec. 29. Special juries, it need scarcely be said, were familiar adjuncts and adjuvants in the administration of justice from the earliest period of the common law. This is but the assertion of what might almost be-termed a prehistoric legal truism, since their origin is too remote in the mists of authority to be now successfully traced. King v. Edmonds, 4 Barn. & Ald., loc. cit. 476. Blackstone says: “Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders ; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such eases, upon motion in court and a rule granted thereupon, to attend theprothonotary or other proper officer with his freeholder’s 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 Com. *357. In King v. Edmonds, supra (loc. cit. 486), Abbott, C. J., said: “It is the very object of a special jury.to obtain the return of persons of a somewhat higher station in society, than those who are ordinarily summoned to attend as jurymen at nisi prius. And a similar practice has long prevailed, even in the execu — 517 — lion of writs of inquiry of damages, before the sheriff; wherein a party obtains, on application, a rule of the court, in obedience to which the sheriff summons persons of a somewhat higher class than those by whom he is ordinarily attended. This object is accomplished in the mode open to the smallest portion of suspicion or objection, by adverting to the addition placed against the name. And we have no doubt that the officer has the power of nomination, and of nominating only from the higher classes according to the ancient practice, and that he acts wisely in doing so, unless there be some special reason for adopting a new and different course.” In King v. Wooler, 1 Barn. & Ald. 193, when considering the topic under discussion, Lord Ellenbobough said: “The rule is directed against the mode of proceeding, and the conduct of the officer. As to the mode, it is said the juries are improperly and illegally struck; and as to the officer, he is charged with partiality. Can any man,-who has heard the detail of the affidavits, say that there is a colour for any part of the application? As to the mode, is it a mode that has ■obtained to-day for the first time? on the contrary, has it not obtained from all times to which the practice of the Court can be traced? The rule itself is not modern, nor has its form been varied: it requires ‘that the sheriff shall attend the coroner with the books or lists of persons qualified to serve on juries, and that he shall name thereout forty-eight good and sufficient men, of whom twelve shall be struck out on each side, and the remaining twenty-four returned to try the issue.’ * * * Then as to the juries being struck illegally; is there any illegality in the officer rejecting some and substituting others? that will depend upon the fifteenth section of the statute 3 g. 2 c. 25, which enacts, ‘That the Court may, on motion, appoint a jury to be struck for the trial of any issues in such manner as special — 518 — juries had been usually struck in trials at bar.’ ' The question then is, In what manner, before the passing of this statute, special juries were struck upon trials at bar? Now it appears from Lilly’s Practical Register, and from the Rule of Court, 8 w. 3, that it was the practice of the Court upon trials at bar to make a rule for the secondary to name the forty-eight; that was the form of the rule before the statute; it is authorized by the statute, and has continued to be the uniform practice of the Court to the present day; and the rule in this very instance, as in all others, directed the master to name the forty-eight. The officer, therefore, is to nominate, not to copy, nor to taJce the names in sequence as they stand upon the page; that would not accomplish the design of the legislature and the Court; that would not secure a special jury. The situations, habits, and education of men vary: he is to nominate; and the very word implies that he is to exercise a judgment upon the subject: the mode in which the coroner proceeded, was by putting his pen into the book, and taking the name nearest his pen, of the person coming within the description of a merchant; the law does not absolutely require that the jurors shall be merchants, but the practice certainly has been within the city of London to take such only as came within that description, and in counties, those who come within the description of esquires or persons of higher degree: that has been the mode in which' the officers have at all times exercised their judgment as to the class from which special jurors are to be selected; and the conduct of the officer would have been liable to exception, if he had departed from that practice in this instance; but it is said that he has rejected a rag-merchant, and substituted in his place a wine-merchant. ,1 am of opinion, that if he did this in the honest exercise of his judgment, with a view of obtaining competent special jurors, he did only — 519 — what was his duty; if he were even mistaken in this instance, he is not to blame, if this rag-merchant were of all men the most enlightened, and the best informed, and the master had taken another in his place less competent, it was an error in judgment, but no crime; I, however, think that the officer, in rejecting the rag-merchant, exercised a sound discretion; for though the individual might possibly be a person of the best education and greatest intelligence, yet his description does not certainly denote that class of persons, where those qualities are generally found; the description of a wine-merchant, generally marks a person of a higher rank in society. Upon the question, therefore, of legality, I am of opinion, that the coroner had a right to select fairly and honestly with a view to attain the object of the rule, persons who in his judgment, were, from their better education and superior intelligence, calculated to decide upon questions of difficulty.” See, also, to the same effect, 2 Tidd’s Pr., 788; Black’s Law Dict., 1111; Thomp. & Mer. on Juries, secs. 12 and 13; 12 Am. and Eng. Encyclopedia of Law, 320. Our legislature, by adopting as it did, the term “special jury” must be presumed to have done so, with a full understanding of the meaning, force and effect which that expression had acquired during its long sojourn at common law. And section 28 of our bill of rights declares that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” which means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existing at common law. Cooley, Const. Lim. [6 Ed.], 389, 504; Copp v. Henniker, 55 N. H. 179; Work v. State, 2 Ohio St. 299; Greene v. Briggs, 1 Curt. C. C. 311; — 520 — Railroad v. Story, 96 Mo. loc. cit. 621; East Kingston v. Towle, 48 N. H. 64; People ex rel. v. Justices, 74 N. Y. 406. We are thus brought to consider rule 37, pleaded by respondent. We need not say much on this point,, .since it is-too plain for argument that that rule abrogates the statute, and while seemingly it endeavors to ■carry it into execution, really evades its provisions by ■causing such a course to be pursued, and such a method •of procedure taken, as leads to the same result as if the •applicant had applied in the first instance for a common .jury. History is said to repeat itself, and this incident forcibly recalls something which affords a striking parallel to the operation of rule 37: The English judges had been accustomed, for a long period, to treat bequests to a “family”'as presumptively intended for the heir of such family, and in Wright v. Atkyns, 1 Turn. & Russ, 143, Lord Eldon, when speaking of the English rule of construction just noticed, whereby heir at law and “my family” were held convertible terms, says: “The court, in its anxiety ¡bo find out the meaning of the testator, has found out, that what he has said, has the same meaning as if he had said nothing at all." Rule 37 operates in a similar way on the statute; it so construes it that, - were it repealed to-morrow, a party desmng a special jury could have one by accepting a common jury in lieu, thereof and this would be all he could get to-day. If this is the true meaning of sections 6089 and 29, 'supra, then the legislature has obviously expended in print a great deal of ineffectual verbiage. There can be no question but that the term “special jury” under the authorities, bears with it as an inevitable concomitant, the .idea of selection, of choice, of the exercise of judgment and discretion, by the — 521 — jury commissioner, not the blind turning of a wheel! Indeed, as already shown, section 16, the only one authorizing a resort to the wheel, is plainly eliminated from the provisions of section 29. It is true of that section that “the jury commissioner as he may be directed by the court, shall select and furnish to the proper officer of said courts, the names of the persons to be selected for such special jury, and said officer shall summon them according to the order of the court,” etc. But certainly those words' in italics can not be allowed to defeat the very end and object which gave origin to the section itself. Nor will they on any reasonable and fair construction do so. The judge under the provisions of section 29 has no more power or rightful authority to direct the jury commissioner to disobey the law, in selecting a special jury, than he would have to direct the sheriff to summon on a common jury those whom the law declares to be incompetent or disqualified to serve thereon. But it is said in the return that section 27 of article 4 of the constitution of Missouri, authorized the judges of the St. Louis circuit court to make mies. It is true that under the provisions of that section the judges of said circuit court may sit in general term for the purpose of making rules of court. But that was simply intended to confer power on general term to secure a uniformity of rules in the several divisions of the circuit court. That this was what was designed by that section is apparent from two other considerations: First, that no such power was conferred on other courts to make rules; and, second, the power merely to make mies is an inherent power belonging to all courts of record, because they are courts of record. Works, Courts and their Jurisdiction, p. 177. So that if the framers of our constitution intended pimply to confer authority on the judges of the circuit — 522 — court of St. Louis “to mahe rules” such attempted conferring of a power already existent was a vain and useless thing, very strongly resemblant of an endeavor “To gild refined gold, to paint the lily,” etc. But it is beyond the power of any court to make rules or take action which come into collision with either the organic or statutory law. Gormerly v. McGlynn, 84 N. Y. 284; Works, Courts and their Jurisdiction, p. 177, and other cases there cited. On frequent occasions this court has thus ruled the same'point, to wit: In State ex rel. Partridge v. Lewis, 71 Mo. 170, the statute required all appeals taken from the St. Louis court of appeals to this court, to be taken within fifteen days after judgment rendered; but the statute allowed appeal bond to be filed “during the term” at which the judgment appealed from was rendered. Partridge, upon judgment being rendered against him in that court, took an appeal within the fifteen days, and during the term tendered his appeal bond, but the court of appeals refused to accept it because the appeal having been granted, that court had no further jurisdiction of the cause. This view was corrected by our writ of mandamus. So, also, in State v. Underwood, 75 Mo. 230, it was held that a rule of court which makes a change of venue case nontriable unless the transcript is filed at least fifteen days before the term, was null, because of being in conflict with section 1870, Revised Statutes, 1879. See, also, to the same effect: State ex rel. v. Gideon, 119 Mo. 94; Calhoun v. Crawford, 50 Mo. 458; Purcell v. Railroad, 50 Mo. 504; 4 Am. and Eng. Encyclopedia Law, 450, n. 7, and cases cited. But one point remains to be considered, and that the method of relief resorted to by relators; as to which it is well settled law that such manner of redress as is prayed for by relators may be granted when the action of the lower court exhibits evidences of excess of — 523 — jurisdiction, as well as when exhibiting absolute absence of jurisdiction. Appo v. People, 20 N. Y. loc. cit. 541; Jac. Law Dict., tit. Prohibition; Ward v. Kelsey, 14 Abb. Pr., 106; State v. Ridgell, 2 Bailey (S. C.), 560; People ex rel. v. Supervisors, 47 Cal. 81; People ex rel. v. Whitney, Ibid, 584; 2 Spelling, Extr. Rel., sec. 1726, and cases cited; 1 Ibid., sec. 626. Eor the reasons aforesaid we award prohibition. Brace, O. J., Gantt, Macearlane, Burgess, and Robinson, JJ., concur; Barclay, J., dissents.