First National Bank of Rock Springs v. Foster

• Decision Date: 25 June 1900
• Parties: FIRST NATIONAL BANK OF ROCK SPRINGS v. FOSTER
• Court: Wyoming Supreme Court

61 P. 466

9 Wyo. 157

FIRST NATIONAL BANK OF ROCK SPRINGS v. FOSTER

Supreme Court of Wyoming

June 25, 1900

Rehearing Denied March 12, 1901, Reported at: 9 Wyo. 157 at 168.

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

At the September, 1899, term of the District Court for Sweetwater County, on Oct. 4, 1899, was tried this action, theretofore brought by Richard Foster, as plaintiff against the First National Bank of Rock Springs, as defendant. Said action was an action at law. A trial by jury was demanded, and the cause was tried by a jury of twelve men. The verdict of the jury was concurred in by only ten of the twelve jurors, two of the jurors refusing to concur in the verdict. Plaintiff in error objected to the receiving and recording of said verdict which objection was overruled, and exception taken. The plaintiff in error duly filed its motion for a new trial and in arrest of judgment, and among the errors of law, complained of, it was alleged that the verdict was contrary to law, and that the verdict of the ten jurors was not a lawful verdict. Motion was overruled by the court, and judgment rendered on verdict against plaintiff in error, in favor of defendant in error to which plaintiff in error duly excepted. Plaintiff in error prosecuted this proceeding in error to reverse said judgment of the court.

Reversed.

D. A Reavill, for plaintiff in error.

The validity of the verdict depends upon the validity of Sec. 3651 of Rev. Stat. which provides for such verdicts. That statute violates and is in conflict with the Constitution, and especially Sec. 9, of Art. 1, thereof. At the time our Constitution was adopted, the term "jury" had a well-defined meaning when referring to a trial jury. It meant a jury of twelve men whose verdict must be unanimous. (Am. Pub. Co. v. Fisher, 166 U.S. 464.)

When the term is used in the Constitution, it must be taken with its well-known and long-established meaning, unless the context discloses a different meaning.

By the language of section of the Constitution above cited it is clear that the term "jury," when referring to criminal cases in courts of record, maintains its Common Law meaning, but when it refers to civil cases or criminal cases in courts not of record, it appears to have received but one change in its Common Law meaning.

When referring to other than criminal cases in courts of record, the term "jury" no longer meant necessarily twelve jurors. This was the one and only change made in the term "jury" by the Constitution, and except for that change it remains the "jury" as at Common Law, i. e., a jury of twelve jurors rendering a unanimous verdict.

It is clear that the above section of our Constitution is in derogation of the Common Law right of jury in so far as it empowers the Legislature to reduce the number of jurors in cases other than criminal cases in courts of record, and as such it must be strictly construed and not extended. (Sedg. on Construction of Stat., 2d Ed., 267, cases there cited.)

The power to destroy the unanimity in the verdict of the jury can not be inferred from the power to reduce the number of jurors below twelve.

The words, "but a jury in civil cases in all courts may consist of less than twelve men, as may be prescribed by law," unless they are mere surplusage, mean that the right of trial by jury is preserved as at Common Law, except the number might be reduced below twelve.

The above Constitutional provision expressly states how the Common Law right of trial by jury may be modified in civil cases, and by such expression has precluded any other modification therein. The maxim, "Expressio unius est exclusio alterius" is applicable.

The right of trial by jury in both criminal and civil cases was one of our most cherished institutions (Sedg. on Construction of Stat., 2d Ed., p. 482.) and it was not the intention of the framers of our Constitution to abolish this right in civil cases, because they have not used apt words to produce such result.

John H. Chiles, for defendant in error.

A State may, if it choose, provide for the trial of civil cases in State Courts by some different jury from that known to the Common Law. (Cooley, Const. Lim., 6th Ed., 29, 30; State v. Bates, 14 Utah 293; 47 P. 78; Am. Pub. Co. v. Fisher, 166 U.S. 464.) Such was evidently the intention of our Constitutional Convention. (Article 1, Section 9.) To find the intent is the object of all interpretation, and if the true sense can thus be discovered, there is no resort to construction. (Suth. Stat. Const., 235, 236.)

Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of all legitimate aids to ascertain the true intention; and among them are some extraneous facts. (Suth. Stat. Const., 292.) Thus, facts relative to foreign States and the general nature of their jurisprudence. (Id., 297.) And so it may be taken into consideration that at the time of the framing of our constitution, other States of the Union had adopted constitutional provisions encroaching upon the Common Law jury. (6 Ency. Law, 2d ed., 988, notes 1, 2, and 3.)

It is manifest that the framers of our constitution did not preserve the common Law Jury in civil cases.

In view of the contemporaneous legislation in other States upon the subject of jury trials, it is fair to presume that our constitutional convention was aware of it, and had in mind not to preserve the Common Law jury when the clause of constitution under consideration was adopted.

It preserved the right of trial by jury in criminal cases only, and then proceeded to say what the number of jurors in civil cases in all courts, and in criminal cases in courts not of record, might consist. See as construing a similar constitutional provision, Huston v. Wadsworth, 5 Colo., 213; In Re Senate Bill (Colo.), 56 P. 564. The plaintiff in error should not be allowed to question the verdict, because it made no objection to the instruction that the jury could return a three-fourths verdict. One who has tried to take advantage of a statute to the detriment of others will not afterwards be heard to object to its constitutionality. (6 Ency. L., 1090.)

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

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 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 the common law to ascertain its meaning. The essential and substantive attributes or elements of jury trial are and always have been number,...