Minnequa Cooperage Co. v. Hendricks

• Decision Date: 25 June 1917
• Docket Number: (No. 64.)
• Citation: 197 S.W. 280
• Parties: MINNEQUA COOPERAGE CO. v. HENDRICKS, Circuit Judge.
• Court: Arkansas Supreme Court

197 S.W. 280

MINNEQUA COOPERAGE CO. v. HENDRICKS, Circuit Judge.

(No. 64.)

Supreme Court of Arkansas.

June 25, 1917.

Dissenting Opinion, July 9, 1917.

Application by the Minnequa Cooperage Company for writ of mandamus against Walter G. Hendricks, Circuit Judge. Writ denied.

J. A. Comer, of Little Rock, for appellant. W. H. Rector, of Little Rock, for appellee.

HART, J.

C. E. Shiffer brought suit in the Pulaski circuit court against the Minnequa Cooperage Company for false imprisonment. The case went to trial before a jury of 12 duly qualified electors of Pulaski county. At the conclusion of the trial the cause was submitted to the jury and it retired to consider of its verdict. After deliberating for some time, the jury returned into court and reported that it was unable to agree upon a unanimous verdict. Whereupon the court called the attention of the jury to an act of the Legislature for the year 1917, empowering nine or more jurors to return a verdict in civil cases. The jury again retired to consider of its verdict, and returned into court with a verdict signed by ten jurors. The court declined to accept the verdict, on the ground that the act in question is unconstitutional. The so-called verdict was in favor of the defendant, and the Minnequa Cooperage Company filed a petition in which the foregoing facts are set forth, and asks this court to make an order requiring the circuit judge to accept said verdict and render judgment upon it.

The parties might have waived a jury in this case, or they might have agreed that a less number than the whole might render a verdict in the case; but they did not do so. This is so, because the court never permitted the verdict to be returned and judgment to be rendered upon it. So it cannot be said that the plaintiff in the case waived a unanimous verdict, or that his conduct amounted to an agreement that a less number than the whole might return a verdict. If the court had accepted the verdict, and he had made no objections, it might be said that he could not speculate on the verdict, by allowing it to be returned without objection, and then, when he found that it was against him, object to it. Here, however, the court refused to receive the verdict.

This brings us to the question of whether the Legislature has the power to provide that a number of the petit jury less than the whole may render a verdict in a case where the Constitution gives to the party a right to a trial by jury. This was a common-law action, and the right of a trial by jury is guaranteed by our Constitution. Govan v. Jackson, 32 Ark. 553, and State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880. Section 7 of the Declaration of Rights of our Constitution reads as follows:

"The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law."

This court in construing a similar provision of an earlier Constitution of this state, said that the trial by jury is a great constitutional right, and when the convention incorporated the provision into the Constitution of this state, it must unquestionably have had reference to the jury trial as known and recognized by the common law. The court further held that the word "jury" at common law means twelve men, and that the Legislature cannot abridge the number. Larillian v. Lane, 8 Ark. 372; State v. Cox, 8 Ark. 436; Cairo & Fulton Railroad Co. v. Trout, 32 Ark. 17. These decisions settle beyond controversy that the words "trial by jury," as used in the section of the Constitution under consideration, must be given their common-law meaning. At common law the essential elements of a trial by jury are and always have been number, impartiality, and unanimity. On this question the great English commentator said:

"Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases. But this we must refer to the ensuing book of these Commentaries, only observing for the present that it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors, and equals." Lewis' Blackstone, book 3, page 379, vol. 2, page 1340.

Mr. Proffatt, the well-known author on Jury Trial, recognizes that the unanimity of the twelve members constituting the jury is an essential attribute of a trial by jury. Proffatt on Jury Trial, § 76 et seq. The author goes on to give the reasons for and against the requirement; but we are not concerned with that, for, as already seen, our Constitution has used the word in its common-law sense. In Lommen v. Minneapolis Gas Light Co., 65 Minn. 196, 68 N. W. 53, 33 L. R. A. 437, 60 Am. St. Rep. 450, the Supreme Court of the state of Minnesota held that a statute providing for struck jurors does not infringe a constitutional mandate that "the right of trial by jury shall remain inviolate." The learned judge in that case, however, in discussing the question of what is a trial by jury within the meaning of the Constitution, said:

"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 had 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, impartiality, and unanimity. The jury must consist of twelve; they must be impartial and indifferent between the parties; and their verdict must be unanimous."

The decision in the case was based on the ground that the statute did not affect either of these three essential attributes of a trial by jury. The cases cited below are express authority for the proposition that unanimity was one of the essential features of a trial by jury at the common law. They also hold, in construing a similar provision of their Constitutions, that the expression "trial by jury" takes its common-law meaning, and that statutes adopting less than a unanimous verdict are unconstitutional. Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671; Opinion of the Justices, 41 N. H. 550; Jacksonville, etc., R. Co. v. Adams, 33 Fla. 608, 15 South. 257, 24 L. R. A. 272, and case note; City of Denver v. Hyatt, 28 Colo. 129, 63 Pac. 403; Carroll v. Byers, 4 Ariz. 158, 36 Pac. 499; Lawrence v. Stearns, 11 Pick. (Mass.) 501; American Publishing Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. 618, 41 L. Ed. 1079; Kleinschmidt v. Dunphy, 1 Mont. 118; First National Bank of Rock Springs v. Foster, 9 Wyo. 157, 61 Pac. 466, 63 Pac. 1056, 54 L. R. A. 549; Bradford v. Territory, 1 Okl. 366, 34 Pac. 66, and 16 R. C. L. p. 181.

The Seventh Amendment to the Constitution of the United States provides:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."

In Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717, 41 L. Ed. 1172, the Supreme Court of the United States, in construing an act of Congress authorizing the territorial Legislature of Utah to provide for verdicts in civil cases by less than the whole number of jurors, held that the act was clearly prohibited by the Seventh Amendment of the...