Lommen v. Minneapolis Gaslight Company, 9992--(237)

CourtSupreme Court of Minnesota (US)
Writing for the CourtMITCHELL, J.
Citation68 N.W. 53,65 Minn. 196
Docket Number9992--(237)
Decision Date19 June 1896

68 N.W. 53

65 Minn. 196


Nos. 9992--(237)

Supreme Court of Minnesota

June 19, 1896

Action in the district court for Hennepin county.

Defendant, at the proper time, filed with the clerk a demand for a struck jury. At the time designated by the sheriff for striking the jury, plaintiff appeared and filed with him written objections to the proceeding, on the ground that the act authorizing struck juries was unconstitutional. The sheriff, nevertheless, did strike a jury. On the first day of the term, plaintiff gave notice of a motion to quash the struck-jury proceedings, based on the fact that no venire had been issued or made returnable for the first day of the term, and also on the ground that all the proceedings were null and void, by reason of the unconstitutionality of the struck-jury law. This motion was denied. A venire for the jury struck by the sheriff was then issued, returnable on the day for which the case had been set for trial, on which day at the call of the calendar, the struck jury having been called, plaintiff filed a motion to quash the venire for the reason that all proceedings had in the matter were unauthorized, null and void, and because the act providing for struck juries was unconstitutional, contrary to the letter and spirit of the constitution, contrary to public policy, and null and void. When the case was reached, the jury being called, plaintiff submitted this motion, which was denied by the court, Belden, J., and an exception was allowed. Before the jury was sworn, plaintiff moved the court to have a jury come from the county at large, and insisted upon her constitutional right to have the action tried by a jury summoned, drawn and selected in the usual manner, and objected to the trial of the action by a struck jury. The court overruled this motion, denied plaintiff's demand and overruled her objection, to which several rulings exceptions were taken. As the struck jury was about to be sworn, plaintiff again objected to the swearing of the jury, for the reason that it was not such a jury as was guarantied by the constitution. This objection was overruled, and plaintiff excepted. The struck jury was sworn, and the trial resulted in a verdict for defendant. Thereafter, on a bill of exceptions, plaintiff moved for a new trial, on the grounds: (1) Of irregularities in the proceedings of the court, by which plaintiff was prevented from having a fair trial, in that the court refused a jury trial, and denied plaintiff a trial by jury as guarantied by the constitution; and (2) for errors in law, occurring at the trial and duly excepted to, to wit, the rulings on plaintiff's motions and objections with reference to the struck jury. The motion for a new trial was denied, and judgment on the merits was entered in favor of defendant. From the judgment, plaintiff appealed. On the appeal, error in the overruling of plaintiff's different motions on the ground that the jury had not been summoned for the first day of the term was expressly waived, and a decision was invoked on the merits. Affirmed.

Judgment affirmed.

Jno. W. Arctander and Ludwig Arctander, for appellant.

The struck-jury law is in conflict with Const. art. 1, § 4. This guaranty does not have reference to jury trials as they existed at common law in England, or as they then existed in other states; but means that the trial by jury, in its essential and substantial features, as it existed in the territory of Minnesota at the time of the adoption of the constitution, shall remain inviolate, and that the legislature is prohibited from enacting any novel mode of jury trial, in any substantial manner different from the jury trial as it existed in the territory at the time, and as the then laws of the territory prescribed. 3 Am. & Eng. Enc. Law, 731; Trigally v. Memphis, 6 Coldw. (Tenn.) 385; State v. McClear, 11 Nev. 39; East Kingston v. Towle, 48 N.H. 64; Pomeroy's Note to Sedgwick, St. & Const. Law (2d Ed.) 487; Copp v. Henniker, 55 N.H. 179; Norval v. Rice, 2 Wis. 22; Whallon v. Bancroft, 4 Minn. 70 (109); State v. Minnesota Thresher Mfg. Co. 40 Minn. 213, 41 N.W. 1020. Not every change in the mode of selecting or securing a jury from that then existing would be an invasion of the constitutional guaranty. Provided trial by jury is maintained in its essential, substantial, and fundamental elements, as then existing and recognized, the legislature has the right to make such changes in the mode of selecting, summoning and procuring the jury as changed conditions might in their judgment warrant. Proffatt, Jury Trial, § 84. These elements are: (1) Impartiality of the jurors; (2) number; (3) unanimity. To these may be added: (4) The right of peremptory challenge. In England, at common law, the sheriff selected the panel from the list of freeholders, he having power to summon whom he chose. This resulted frequently in packed juries. The American states from the beginning took the power of selection out of the hands of the sheriffs, and practically all, with the single exception of Missouri, ordained that the power of selecting the primary list should be vested in a board of several members. The selection from the primary lists for the term panels, from the earliest days, in practically all the states, has been made by fortuitous drawing; and the selection of the panel for the particular case is made in the same manner. Proffatt, Jury Trial, §§ 114, 127, 146, 152. To this element of chance, as essential in securing impartiality, the policy of the law in the territory at the time of framing the constitution was committed. Rev. St. 1851, c. 8, art. 1, §§ 15, 16; Id. c. 126, §§ 146, 149; Id. c. 115, §§ 1, 5, 6; Id. c. 126, §§ 151, 153, 160; Pub. St. 1858, c. 112, § 8; Rev. St. 1851, c. 126, § 160. The element of chance is eliminated by the struck-jury law. The first struck-jury law in Minnesota was Laws 1864, c. 31; nor was such a jury known in Wisconsin while we were part of that state. The argument is not weakened by the territorial statutes providing for summoning talesmen when a jury could not be obtained from the regular panel, since this was required by the necessities of the case. Steele v. Malony, 1 Minn. 257 (347). Deprivation of the right of peremptory challenge is an essential differentiation from the constitutional jury trial. Proffatt, Jury Trial, § 155; Cooley, Const. Lim. 319. The territorial law recognized this right. Rev. St. 1851, c. 71, § 17. No right of peremptory challenge is given by the struckjury law, or can be allowed as to the original panel, or as to talesmen called. Branch v. Dawson, 36 Minn. 193, 30 N.W. 545; Watson v. St. Paul City Ry. Co., 42 Minn. 46, 43 N.W. 904.

The act is in conflict with Const. art. 1, § 8. The act gives to the man who can purchase a struck jury more than justice. Meyer v. Berlandi, 39 Minn. 438, 40 N.W. 513; O'Brien v. Krenz, 36 Minn. 136, 30 N.W. 458. If, like the special jury at common law in England, and in New York, New Jersey and Michigan, the right to this jury was granted only when it was made to appear to the court in its sound discretion that a special and particular reason existed for resorting to it (Proffatt, Jury Trial, § 72), this constitutional objection would have less force. See 3 Blackst. Com. 349.

The act is void, as being contrary to the spirit of the constitution, contrary to public policy, and as furnishing an opportunity for corruption and oppression. The law is not less unconstitutional because of acquiescence. Perkins v. Scott, 57 N.H. 55; Bentham's Elements of the Art of Packing Juries, 26.

A. B. Jackson, for respondent.

Similar laws have been held constitutional. O'Brien v. Minneapolis, 22 Minn. 378; Mark v. St. Paul, M. & M. Ry. Co., 32 Minn. 208, 20 N.W. 131; Branch v. Dawson, 36 Minn. 193, 30 N.W. 545; Watson v. St. Paul City Ry. Co., 42 Minn. 46, 43 N.W. 904. The law is not open to the objection that it is class legislation. State v. Cooley, 56 Minn. 548, 58 N.W. 150; Johnson v. Chicago, M. & St. P. Ry. Co., 29 Minn. 425, 13 N.W. 673; Schimmele v. Chicago, M. & St. P. Ry., 34 Minn. 216, 25 N.W. 347; Johnson v. St. Paul & D. R. Co., 43 Minn. 222, 45 N.W. 156; Lavallee v. St. Paul, M. & M. Ry. Co., 40 Minn. 249, 41 N.W. 974. The law is not in conflict with Const. art. 1, § 8; Willard v. County Commrs., 22 Minn. 61; 3 Am. & Eng. Enc. Law, 725, and notes. See McDonald v. Achell, 6 S. & R. 240; Vierling v. Stifel Brewing Co., 15 Mo.App. 125; Conley v. Woonsocket Inst., 11 R. I. 147; Adams v. Corriston, 7 Minn. 365 (456); Gesford v. Critzer, 2 Gilm. (Ill.) 698; Beers v. Beers, 4 Conn. 535. The law is not in conflict with Const. art. 1, § 4. It was not the intention of the framers of the constitution to impose any restriction on the legislature as to the manner in which a jury should be selected and obtained. Jones v. State, 1 Ga. 610; Boon v. State, 1 Ga. 618; State v. Wilson, 48 N.H. 398; People v. Harding, 53 Mich. 49, 18 N.W. 555; Hartzell v. Commonwealth, 40 Pa. 462; Stokes v. People, 53 N.Y. 164; Dowling v. State, 5 S. & M. (Miss.) 682; Cregier v. Bunton, 2 Strob. (S. C.) 487; Flint River S. Co. v. Foster, 5 Ga. 194; Walter v. People, 32 N.Y. 147, 159; Commonwealth v. Dorsey, 103 Mass. 413; Warren v. Commonwealth, 37 Pa. 45; State v. McClear, 11 Nev. 39; Hudgins v. State, 2 Ga. 173; State v. Hoyt, 47 Conn. 518; Colt v. Eves, 12 Conn. 251; Perry v. State, 9 Wis. 21; State v. Ryan, 13 Minn. 343 (370).

At the time of adopting the constitution, the people of the territory were enjoying a guaranty of the right of trial by jury made originally by the act of congress of 1787 providing for government for the Northwest territory, confirmed by the Act of Congress of 1836, when they became inhabitants of the territory of Wisconsin, and again in 1849 when they became inhabitants of the territory of Minnesota. The people throughout the Northwest territory were familiar with struck juries, and...

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