Neely v. State

• Decision Date: 31 December 1874
• Parties: Samuel M. Neely v. The State.
• Court: Tennessee Supreme Court

63 Tenn. 174

Samuel M. Neely

v.The State.

Supreme Court of Tennessee.

December Term, 1874.

FROM MAURY.

Appeal from the Circuit Court. Jo. C. GUILD, Judge.No Brief for Plaintiff.

ATTORNEY-GENERAL HEISKELL for the State.

NICHOLSON, C. J., delivered the opinion of the Court.

Samuel M. Neely was one of the regular jurors appointed by the County Court of Maury County for the May Term, 1875, of the Circuit Court for that county. After serving three days, the jurors were informed by the Circuit Judge that their compensation as jurors could be provided only by taxing the same as costs, against the losing parties, in pursuance of the provisions of Chap. 7 of the Acts of 1875, whereupon Neely declined to serve longer, and for so refusing the Circuit Judge imposed upon him a fine of ten dollars for contempt. From this judgment Neely has appealed.

It is apparent that the object of this appeal is to have the judgment of this Court upon the constitutionality of the Act passed in 1875, entitled “an Act to tax the losing party with the jury fees in all cases in civil suits, and to repeal secs 4036 and 4037 of the Code.”

The first question which presents itself is, whether the constitutionality of the act referred to is properly raised by the record? It appears from the bill of exceptions, that during the first two days of the Term the jurors in attendance were not engaged in the trial of any cause, the Court being employed on business of the Court not requiring juries; that on the third day the jury was engaged five hours on the trial of a cause. After that Neely and his fellow-jurors submitted to the Court the question, how, and in what manner, and by whom they were to be paid and compensated for their services for the past two days, and that of the third day? The Court determined, and so announced, that he could not tax either the County or the State with the fees of jurors for any period during which they had not served, or, indeed, any body or persons, and that for periods during which jurors served, the county could only be taxed for such fees where suits were brought in forma pauperis.

Upon the rendering of this judgment on the question submitted to the County, Neely declined to serve further as a juror, and thereupon he was fined for contempt. It is clear, that if the judgment of the Court was correct, the juror was in contempt, and was properly fined. But if he was in error in holding that in no event the fees of the jury could be taxed to the County, except in cases brought in forma pauperis, then the action of the Court was unauthorized, and the juror was not in contempt. If the Act of February 24, 1875, was null and void, then the law charging the fees of jurors upon the County was still in force, and the Circuit Judge was in error in his adjudication of the question submitted to him. It follows that the question whether the juror was in contempt or not depends upon the question whether the Act of February 24, 1875, is constitutional and valid, or unconstitutional and void. The question is, therefore, legitimately raised by the bill of exceptions.We proceed to examine the constitutionality of the Act of February 24, 1875, Ch. 7. The first section provides, that hereafter the fees allowed by law to juries in all civil cases shall be taxed and collected as other costs provided, the County shall continue to pay in the same manner now provided by law the said fees on all suits instituted in forma pauperis.

The second section provides, that secs. 4036 and 4037 of the Code be and the same are hereby repealed.

The third section provides, that the Judge presiding at the trial in said civil cause shall apportion the fees of jurors in proportion to the time consumed in the trial of the same, provided, that the County shall not be taxed with any part thereof.

Before proceeding to examine the constitutional objections to this Statute, it may not be out of place to notice its practical working. If one of the parties to the suit is solvent, and the other insolvent, the jurors get no fees for their services, unless they decide against the solvent party--except in cases in which the plaintiff sues as a pauper, and then the County pays the fees of jurors, as by the former law. When criminal cases are on trial in the Circuit Courts if the regular panel of jurors is not engaged, as is common, they are required to attend without employment and without compensation until the criminal trial is ended. So, also, if in civil cases any of the regular panel should be incompetent, or should be challenged, as often happens, and their places are supplied by talesmen, the regular jurors so set aside have to continue in attendance, without employment and without compensation. In this way it may frequently occur that the regular jurors, in whole or in part, may be forced to attend Court for days or weeks, without performing any service or receiving any compensation. But this reference to the practical working of the Act only shows the inequality and injustice of its operation. Our business is to examine and determine whether a Statute so unequal and unjust, and one so difficult of execution in practice, if not impracticable, is liable to constitutional objections.

1. It is insisted that the Act violates sec 21 of Art. 1 of the Constitution, which ordains, that “no man's particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefor.”

The ground of this objection is, that in all civil cases in which the losing party is insolvent, the jurors will have been required to give their particular services to the public use without being compensated therefor.

It is true, that in cases in which the losing party is insolvent, jurors will get no compensation, but in this respect they are placed on the same footing with others whose compensation, is taxed as part of the costs of the case. Witnesses and officers of Court are required to give their services, and to look to the costs when collected from the losing party for compensation for their services.It can not be assumed that compensation for services as a juror is a common law right. It is stated in the Mirror of Justice, Ch. 11, sec. 4, that in the time of Henry I, it was ordained, that “jurors sworn upon assizes should not have fees.”

But it is one of the implied and necesary conditions upon which men form governments, that sacrifices must sometimes be made by individuals for the common good, for which no compensation can be claimed. Such sacrifices of time or personal service, or of property, are compensated for in the protection which the government furnishes for their rights of person and of property. Hence, whenever, in the judgment of the Legislature, it becomes necessary to require the services of jurors in carrying on the Courts, their services may be required, and, if need be, even without compensation; but this must be required in pursuance of laws enacted for that purpose by the Legislature.

But in the present case, the Legislature has not thought proper to require the services of jurors without compensation, they have only required parties litigant, in whose immediate service the jurors may be engaged, to make compensation by way of costs. If it should happen that no compensation is received in cases where the losing party is unable to pay, it is no greater sacrifice than many others are required to make for the common good.

2. The next objection is, that the Statute violates Art. I, sec. 6 of the Constitution, which ordains: “That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.”

The settled meaning of this provision of the Constitution is, that the right of trial by jury shall remain inviolate, as it existed at common law at the time of the formation of the Constitution. 9 Hum., 43;6 Cold., 382.

This right is guaranteed to every citizen, and any Statute which fails to secure the full enjoyment of it is necessarily void.

It is not necessary for us to recur to the origin of this institution, or to trace its history, in order to appreciate its inestimable value in a free government, and to understand why it has been declared to be “the glory of England.” This is sufficiently indicated in the fact that it has been solemnly ordained, in all...