American Pub Co v. Fisher, 242

Decision Date12 April 1897
Docket NumberNo. 242,242
Citation166 U.S. 464,17 S.Ct. 618,41 L.Ed. 1079
PartiesAMERICAN PUB. CO. v. FISHER et al
CourtU.S. Supreme Court

On April 29, 1891, plaintiff in error commenced an action in the district court of Salt Lake county, territory of Utah, to recover of defendants the sum of $20,844.75 on a contract for furnishing labels, cards, etc. After answer the case came on for trial before a jury on December 10, 1892, and resulted in a verdict in favor of the defendants, signed by nine jurors, the others not concurring. Judgment was rendered upon this verdict, which was sustained by the supreme court of the territory. 10 Utah, 147, 37 Pac. 259.

This action of the trial and supreme courts in sustaining a verdict returned by only nine of the jurors was under the authority of an act of the legislature of Utah approved March 10, 1892 (Laws Utah 1892, p. 46), which provides as follows:

'Section 1. That section 3371 of the Compiled Laws of 1888 of Utah is hereby amended so as to read as follows:

"Sec. 3371. In all civil cases a verdict may be rendered on the concurrence therein of nine or more members of the jury."

The bill of exceptions contains this recital in respect to an instruction and the verdict:

'The court further charges you that the concurrence of nine or more members of the jury is essential to your verdict, and that all who agree to it should sign it.

'(To which last charge the plaintiff duly excepted.)

'The jury, having retired and deliberated, returned a written verdict into court on the 12th day of December, 1892, 'finding the issues for the defendant,' signed by nine (9) of its members,—the others refusing to concur therein. Which verdict the court then and there received, and caused to be entered upon the record.

'To which action of the court the plaintiff excepted.'

J. M. Wilson, for plaintiff in error.

J. L. Rawlins, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

As the amount in controversy is over $5,000, this court, in any view, has jurisdiction of the case, and may inquire into all matters properly preserved in the record. The recital in the bill of exceptions shows that proper exceptions were taken to the charge of the court in respect to the number of jurors whose concurrence was essential to the verdict, and also to its action in receiving and entering of record such verdict.

The territorial statute was relied upon as authority for this action. Its validity, therefore, must be determined. Whether the seventh amendment to the constitution of the United States, which provides that 'in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,' operates ex proprio vigore to invalidate this statute, may be a matter of dispute. In Webster v. Reid, 11 How. 437, an act of the legislature of the territory of Iowa dispensing with a jury in a certain class of common-law actions was held void. While in the opinion, on page 460, the seventh amendment was quoted, it was also said, 'The organic law of the territory of Iowa, by express provision and by reference, extended the laws of the United States, including the ordinance of 1787, over the territory, so far as they are applicable;' and the ordinance of 1787 (article 2), in terms, provided that 'the inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury.' So the invalidity may have been adjudged by reason of the conflict with congressional legislation. In Reynolds v. U. S., 98 U. S. 145, 154, it was said, in reference to a criminal case coming from the territory of Utah, that 'by the constitution of the United States, Amend. 6, the accused was entitled to a trial by an impartial jury.' Both of these cases were quoted in Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, as authorities to sustain the ruling that the provisions in the constitution of the United States relating to trial by jury are in force in the District of Columbia. On the other hand, in Late Corporation of Church of Jesus...

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