Clayton v. Clark

• Citation: 26 A. 795,55 N.J.L. 539
• Parties: CLAYTON v. CLARK.
• Decision Date: 09 June 1893
• Court: New Jersey Supreme Court

26 A. 795

55 N.J.L. 539

CLAYTON

v. CLARK.

Supreme Court of New Jersey.

June 9, 1893.

(Syllabus by the Court.)

Certiorari by Charles W. Clayton against William P. Clark to review a judgment against the prosecutor at the suit of defendant. Judgment for prosecutor.

Argued February terra, 1893, before VAN SYCKEL and GARRISON, JJ.

F. Bradner, for prosecutor.

S. Kulish, for defendant.

GARRISON, J. The question to be decided is whether the judge of a district court has jurisdiction to try the merits of a case where the matter in dispute exceeds the sum of $200, when the defendant has appeared at the proper time and demanded a jury. In the case before us the venire was withheld solely because the defendant refused to advance the fees and costs incident thereto; so that the precise point raised is whether the defendant's right to a trial by jury was lawfully made to depend upon the prepayment by him of the expenses of the venire.

The question whether the legislature, by increasing the jurisdiction of inferior tribunals, may lawfully take away the right of trial by a common-law jury, or may hamper it with conditions that affect its usefulness, is evidently one of large importance in a constitutional point of view. The constitutional requirement that "the right to a trial by jury shall remain inviolate" guaranties the opportunity to submit common law rights to a tribunal that shall possess the attributes of the historical jury, as it existed at the time of the adoption of the organic law. The language of that instrument, however, with respect to the right to this mode of trial, is that it shall remain inviolate, not that it shall be unalterable; so that the limits of legislative action are not so circumscribed as to preclude the exercise of some power over the jurisdiction and procedure of inferior courts, although even the existence of such a power was doubted by Elmer, J., in State v. Zeigler, 32 N. J. Law, 262. Legislative action of this kind has received judicial sanction in many of the courts of this country. Beers v. Beers, 4 Conn. 535; Curtis v. Gill, 34 Conn. 54; Guile v. Brown, 38 Conn. 237; Hapgood v. Doherty, 8 Gray, 373; State v. Allen, 45 Mo. App. 551; Dawson v. Horan, 51 Barb. 459; Knight v. Campbell,62 Barb. 16; Emerick v. Harris, 1 Bin. 416; Biddle v. Com., 13 Serg. & R.410; Vanzart v. Waddel, 2 Yerg. 260; Morford v. Barnes, 8 Yerg. 446; Norton v. McLeary, 8 Ohio St. 205; Keddie v. Moore, 2 Murph. 45.

The narrower question argued before us, viz. whether the legislature may constitutionally require that the party demanding the jury shall advance the expenses of the venire, has likewise been affirmed in several jurisdictions,—Randall v. Kehlor, 60 Me. 43; In re Marron, (Vt.) 12 Atl. Rep. 523; Couners v. Railroad Co., (Iowa,) 37 N. W. Rep. 966; People v. Hoffman, 3 Mich. 248; Adams v. Corriston, 7 Minn. 456, (Gil. 365;) Venine v. Archibald, 3 Colo. 163; Conneau v. Geis, 73 Cal. 176, 14 Pac. Rep. 580, —and questioned in Greene v. Briggs, 1 Curt. 311, and Copp v. Henniker. 55 N. H. 179.

The decision of the present case does not, however, call for the expression of an opinion upon either of these questions. Still less does it warrant the adoption of any rule limiting legislative control over this subject, for the reason that there is in this state no legislation of the character criticised in the cases cited. Our statute books fail to show a vestige of authority for the proposition that a defendant who has been sued in a district court for a sum in excess of $200 is required to prepay the expenses of the venire which, upon his demand, the judge is directed to issue. Supp. Revision, p. 230, § 31. If such a requirement exists, it must be by force of statutory provision. The act under which these suits are brought was approved March 27, 1882, and relates to "the jurisdiction and practice of district courts in this state." Pamph. Laws, 195. It is general in terras, and its effect is to extend the jurisdiction of these statutory courts to suits in which the matter in dispute does not exceed $300. It likewise transfers to the district courts in such cases some of the practice, and most of the fee hills, of the circuit and common pleas courts. Among other things, it provides that when the matter in dispute is above the sum of $200 the venire shall issue to the sheriff, and that the fee of each juror shall be 50 cents per day, "to be paid as now provided by law in other cases tried by jury in said courts." The provisions for the payment of juries in the act concerning district courts relate solely to actions of debt, and apply exclusively to the payment of costs by plaintiffs after trial, hence afford no support whatsoever for the proposition that in an action of trespass the defendant must pay the cost of the jury before trial. Another section in the act providing for the payment of costs is in these words: "That no constable or other officer authorized to serve a subpoena, summons, or other mesne process issued out of any district court shall be required to serve such process until his legal fees and...