Klein v. Hutton
| Decision Date | 25 November 1922 |
| Court | North Dakota Supreme Court |
An appeal from the District Court of Burleigh County, Nuessle J.
Judgment affirmed.
Judgment affirmed. Respondent entitled to his costs and disbursements on appeal.
Theodore Koffel and R. C. Morton, for appellant.
Section 260 of the Territorial Code of 1862 provides that issues of fact arising in action for the recovery of money, or of specific real or personal property shall be tried by a jury so that the plaintiff's cause of action comes directly within the class of cases guaranteed by the state Constitution under the above section of the Territorial Code. City Fuel & Transfer Co. v. Young, 185 N.W. 934; State v. Fischer, 184 N.W. 774; Widen v State, 124 N.W. 509; State v. Grunke, 59 N.W 452; Goyke v. State, 117 N.W. 1126.
The guaranty by the Constitution for a trial by jury has been held to mean "that it shall not be destroyed or annulled by legislation, nor so hampered or restricted as to make the provision a nullity." "Inviolate" constitutes freedom from substantial impairment. 16 R. C. L. 196.
The rights of suitors ought to be determined by the law existing when the cause of action arose, and such rights cannot be abridged either by judicial decision or by statute. Schafner v. Young, 10 N.D. 245, 86 N.W. 733; Conrad v. Smith, 6 N.D. 337, 70 N.W. 815; Dak. Inv. Co. v. Sullivan, 9 N.D. 303, 83 N.W. 233; Eaton v. Guaranty Co., 11 N.D. 79, 88 N.W. 1029; Diver v. Cornwall, 10 N.D. 123, 86 N.W. 227.
It has been held that an agreement in advance of the arising of a controversy to submit the question of law to a private party is invalid. Sanitary Dist. v. McMahan & M. Co. 110 Ill.App. 510.
Therefore this statute is an additional burden upon the small claimants and instead of favoring small claimants it casts a greater burden and hardship upon them, which is not required of the larger claimants, and also shortens the statute of limitations upon small claims. Adams v. Kenoyer, 17 N.D. 302, 116 N.W. 92, 16 L.R.A.(N.S.) 681; Clark v. Doyle, 17 N.D. 340, 116 N.W. 348; State v. Devine, 98 N.C. 778.
A law which displaces constitutional officers by whatever officials during a portion of the time is unconstitutional. Ex parte Corliss, 16 N.D. 470, 114 N.W. 962.
(b) This statute makes no provision for a review of its decisions by writs of error or otherwise. On the contrary it absolutely prohibits writs of error or appeals from being taken from said board, prohibiting any records of its proceedings being kept, and therefore, having no record there is nothing upon which an appeal can be taken. Const. of North Dakota, § 109; Larson v. Dutton, 40 N.D. 230, 168 N.W. 625; Christianson v. Farmers Warehouse Assn. 5 N.D. 438, 67 N.W. 300.
John H. Wigmore (of counsel) for the American Judicature Socitey, and Herbert Harley and Albert Kocourek, amici curiae.
"When the legislative assembly repeatedly construes or interprets a constitutional provision, such construction or interpretation should be followed by the courts when it can be followed without doing violence to the fair meaning of the words used, in order to support the legislative action and give effect thereto, if the language construed admits of such construction."
If it might be supposed that §§ 7 and 120 are in conflict, the later provision would control because of its position in the constitution. If two provisions are in conflict the last in order of time or of position will prevail. Ex parte Mascolo (Cal. 1914) 142 P. 903; Quick v. White Water Twp. (1856) 7 Ind. 570; Hope v. New Orleans, 106 La. 345, 30 So. 842; Hoag v. Washington-Oregon Corp. 75 Or. 588, 144 P. 574, 147 P. 756; Cent. Dig. Const. Law, § 9; Dec. Dig. Const. Law, Key 15.
A. The people of North Dakota intended to have a tribunal of conciliation, if the legislature saw fit to establish it. As this court has said, the object sought by the Constitution to be accomplished must be kept in mind. State v. Robinson (N.D.) 160 N.W. 514; Jarrolt v. Moberly, 103 U.S. 580, 26 L.Ed. 492; Knox v. Lee, 12 Wall. 457, 531, 20 L.Ed. 287; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; Dorman v. State, 34 Ala. 238.
B. The legislature is the exclusive judge of the means to be provided for the promotion of a constitutional object. Zikos v. Oregon R. Co. 179 F. 893.
C. There is even a presumption in favor of constitutionality by the mere fact of enactment of a statute. O'Laughlin v. Carlson, 30 N.D. 218, 27 N.W. 675; State v. Taylor, 33 N.D. 85, 156 N.W. 561; State v. Armour, 27 N.D. 177, 145 N.W. 1033, L.R.A. 1916E, 380; Bradley v. Richmond, 227 U.S. 477, 485, 33 S.Ct. 318, 57 L.Ed. 603.
It is well settled that in judicial proceedings, whether civil or criminal, a state may, if it chooses, dispense with trial by jury. Even in criminal cases, it may dispense with indictments, and may permit a conviction in felony cases by a jury of less than twelve. Maxwell v. Dow, 176 U.S. 581; Walker v. Sauvinet, 92 U.S. 90.
Even the compulsory feature of the Compensation Act does not operate to deny trial by jury as guaranteed by any constitution. Grand Trunk R. Co. v. Industrial Commission, 291 Ill. 167.
The second of these recent statutes is the Arbitration Act. Many of the constitutional objections raised on this record were advanced against that act. In the same year (1921) that act was held constitutional in Illinois and in New York. White Eagle Laundry Co. v. Slawek (1921) 296 Ill. 240, 129 N.E. 753; Berkovitz v. Arib & Houlberg (1921) 230 N.Y. 261, 130 N.E. 288.
Zuger & Tillotson, for respondent.
The courts hold that the constitutional guaranty of a jury trial is satisfied if a party is afforded a jury trial on appeal though not in the tribunal of primary jurisdiction. Flour City Fuel & Transfer Co. v. Young (Minn.) 185 N.W. 934.
This is an appeal from a judgment and for costs and disbursements. It will be conducive to a clear comprehension of the issues involved to set forth a concise statement of the material facts necessary to be stated: On the 6th day of December, 1920, at Bismarck, North Dakota, the defendant executed and delivered to plaintiff, his promissory note of that date in the sum of $ 60, bearing interest at 10 per cent per annum, and due on demand. Demand for payment of the note was duly made. No payment was made, except the sum of $ 2. At the time the action was commenced plaintiff was the owner and holder of the note.
At the time of commencement of the action there was a duly appointed, qualified, acting conciliation board within and for the county of Burleigh, state of North Dakota, which was appointed by virtue of the provisions of chapter 38 of the Session Laws of 1921, which repealed §§ 9187-9192 of the Comp. Laws, 1913. The plaintiff before commencement of this action did not file in any court a certificate of a conciliator, showing any attempt to effect a settlement of the claim upon which the action is brought. He made no attempt to have his claim submitted to conciliation. In the action no provisional or ancillary remedy was sought nor was there involved therein title or possession of real estate; nor has any district judge directed the issuance of process therein without recourse to conciliation proceedings. There are no other material facts.
The complaint is in the ordinary form in such cases before the passage of the Conciliation Act. In substance the defense set forth in the answer is: That at the time of the commencement of the action, there was a duly appointed, qualified acting conciliation board within and for the county of Burleigh, as provided for under chap. 38 of the Session Laws of 1921, referred to in the answer as Senate Bill No. 158 of the 17th legislative assembly; that plaintiff before the commencement of the action did not file in any court a certificate of a conciliator, showing an attempt to effect a settlement of the claim upon which the action is founded; that such attempt has failed; that the action is not one in which a provisional or ancillary remedy is sought; that it does not involve title or possession of real estate, and, that no district judge directed the issuance of any process in the action without recourse to conciliation proceedings.
Were it not that the ultimate issues, and innovation in the administration of justice, provided for in the act in the kind of controversies to which it relates concerns, not only the social welfare of the citizens of this state, but indirectly may concern the welfare of the citizens of other states of the Union, should such other states or any of them at some future time see fit to follow the example of North Dakota in the enactment of a conciliation act, the first of the states to establish a state wide tribunal of conciliation, the case would be of minor importance, but in the circumstances the case is one of unusual public interest. The case has been ably briefed by the counsel of both parties, and especially able and helpful is the brief filed by Honorable John Wigmore of counsel, author of the well-known work on evidence, which bears his name, who, from public interest, appeared on behalf of the American Judicature Society, and Herbert Harley and Albert Kocourek, who appear as amici curiae, and whose participation is also from public interest.
The manifest purpose of the act is to facilitate, regulate, and encourage a voluntary adjustment of matters which otherwise would or may become the subject of legal controversies, where such amount does not exceed $ 200, and to provide a means to accomplish that end, the use of which will not necessitate invoking the powers and functions of the...
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