McRae v. Grand Rapids, L. & D. R. Co.
| Decision Date | 04 November 1892 |
| Citation | 53 N.W. 561,93 Mich. 399 |
| Parties | McRAE et al. v. GRAND RAPIDS, L. & D. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.
Action by William McRae and Michael Lally against the Grand Rapids Lansing & Detroit Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.
Charles B. Lothrop, (Edwin F Conely, of counsel,) for appellant.
Atkinson, Carpenter & Brooke, for appellees.
This cause came on for trial in the Wayne circuit court December 2, 1890, and occupied the entire time of the court and jury with the exception of occasional adjournments on account of the illness of jurors and counsel, until April 25, 1891, when the plaintiffs had verdict and judgment for $91,531.38. Defendant brings error.
The record shows that on April 13, 1891, Mr. Stamn, one of the jurors, who had been quite ill for several days, was discharged by order of the court, against the protest of defendant's counsel, and the trial directed to proceed with the 11 remaining jurors. The 11 jurors rendered the above verdict. Error is assigned upon this ruling. On the argument here, counsel were confined to this one question, as defendant's counsel insists that this amounted to a mistrial. It is to be regretted that the rights of the parties cannot be settled upon the present record, which has taken so much time in the court below, and involved so large an expense; the record containing over 3,500 pages of printed matter. But the question raised is one of great importance to the jurisprudence of the state and the rights of litigants in the courts, and the court should not hesitate, on account of the immense interests involved, to settle at the outset so important a principle. This is the first time since the enactment of the statute upon which plaintiffs' counsel relies to sustain the verdict that the question has been brought to the attention of this court, though it is believed that in some of the circuit and justices' courts the statute has been construed as contended by plaintiffs' counsel. It is not important to enter upon an investigation of the history of the right of trial by jury. Just how it had its origin is involved in some mystery; but, whatever its origin, the right of trial by jury of 12 men became fixed centuries ago in the common law, and unanimity of verdict became requisite, until, wherever the Anglo-Saxon tongue was spoken, and in many other countries, this right came to be regarded as the great bulwark of the liberty of the citizen. Whether charged with an offense against the commonwealth, or in a controversy with another, the right could always be invoked. When separated from the mother country, we regarded it as a birthright, and have ever been jealous of any attempted innovations upon the system. In adopting constitutions for our government and guidance, our fathers had in mind the great charters of English liberty; and the right of trial by jury, as it was understood at the common-law, was not the least of those rights. Sir Matthew Hale says, (2 Hale, P. C. 161:) "But in case of a trial by the petit jury it can be no more nor less than twelve;" and at page 296 he says: "If only eleven be sworn by mistake, no verdict can be taken of the eleven; and, if it be, it is error." This was the sense in which the common-law jury was understood,-a jury of 12, whose verdict must be unanimous. The legislature of this state, in 1861, passed the following act: Laws 1861, p. 223; 2 How. St. p. 1914, � 7622. The constitutional provisions relating to trial by jury in this state are as follows: Article 6, � 27: "The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law." Section 28: "In every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve men in all courts not of record," etc. Article 4, � 46, provides: "The legislature may authorize a trial by a jury of a less number than twelve men."
Defendant's counsel contends: (1) That the constitutional provision permitting the legislature to authorize a trial by a jury of a less number than 12 does not apply to circuit courts. (2) That the act of 1861 is unconstitutional and void for the reasons: (a) That the legislature does not thereby "authorize a trial by a jury of a less number than twelve men," within the meaning of the constitution. (b) That the legislature has not authorized a trial by a jury of a less number than 12 men. On the contrary, in courts of record, on demand of either party, the common-law jury of 12 men must still be called and sworn to try the cause, and the constitution does not empower the legislature to change the essential features of the trial by jury at the common law. (c) That the constitutional provision above cited does not empower the legislature to authorize a part of the jury to render the verdict; that is, whatever number the legislature may prescribe, trial by a jury of that number must retain the essentials of trial by a jury of the common-law number.
Whether this constitutional provision applies to circuit courts we shall not pass upon or decide, so well convinced are we of the unconstitutionality of the act. It is confessed that this provision does not apply to the trial of criminal cases in courts of record. The objection to the act is that it does not purport to authorize a trial by a jury of a less number than 12, except upon a certain contingency, and that contingency destroys the unanimity of the verdict. It does not preserve the common-law right of a unanimous verdict of a jury which the constitution recognizes by section 27 art. 6, which provides that "the right of trial by jury shall remain." Mr. Justice COOLEY, speaking of this clause, in Tabor v. Cook, 15 Mich. 322, says: "The intention here is plain to preserve to parties the right to have their controversies tried by a jury in all cases where the right then existed; and suitors cannot constitutionally be deprived of this right, except where, in civil cases, they voluntarily waive it by failing to demand it in some mode which the legislature shall prescribe." Mr. Justice CHRISTIANCY, in Hill v. People, 16 Mich. 351, says: "Our constitution, in retaining the right of trial by jury, tacitly refers to and adopts the common-law number." In Van Sickle v. Kellogg, 19 Mich. 49, COOLEY, C.J., in speaking of this clause of the constitution, says: "The constitutional principle which underlies the right is one to which the people governed by the common law have clung with perhaps more tenacity than any other; and they have justly regarded it as not preserving simply one form of investigating the facts in preference to another where both would have attained the same result, but as securing the mode of trial which was best calculated to insure a just result, and to secure the citizen against the usurpation of authority, and against arbitrary or prejudiced action on the part of single individuals who chanced to be possessed of judicial power. In Underwood v. People, 32 Mich. 1, Mr. Justice CAMPBELL says: "The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character." And again, in Paul v. Detroit, Id. 108, the same learned justice, speaking of the mode of taking land for public uses prior to the adoption of the present constitution, says: ...
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