State Conservation Dept. v. Brown

• Decision Date: 09 December 1952
• Docket Number: No. 43,J,43
• Parties: STATE CONSERVATION DEPARTMENT v. BROWN et al. une Term 1952.
• Court: Michigan Supreme Court

Page 859

55 N.W.2d 859

335 Mich. 343

STATE CONSERVATION DEPARTMENT v. BROWN et al.

No. 43, June Term 1952.

Supreme Court of Michigan.

Dec. 9, 1952.

B. J. Tally, Bay City, John X. Theiler, Bay City, of counsel, for respondents and appellants.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Nicholas V. Olds, Asst. Atty. Gen., Florence Clement Booth, Asst. Atty. Gen., for appellee.

Before the Entire Bench, except NORTH, C. J.

DETHMERS, Justice.

Under authority of C.L.1948, § 300.14, Stat.Ann. § 13.1224, plaintiff filed a complaint in circuit court alleging that a certain fish net of greater value than $300, seized by it and owned by defendants, had been set and used illegally in the waters of Lake Huron, contrary to C.L.1948, § 308.5 (h), Stat.Ann. § 13.1496(h), and praying for its condemnation and confiscation. The statutory citation or show cause order issued. Defendants filed an answer and a demand for jury trial, which was denied. On trial plaintiff put in proof of the illegal use of the net, at the conclusion of which defendants rested without offering proofs. From an order of condemnation and confiscation they appeal, on leave granted.

Did denial of a jury trial constitute error? Plaintiff cites authorities, e.g., Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich. 273, 230 N.W. 170, 69 A.L.R. 1024, for the proposition that parties are not entitled to a jury trial where there is no dispute on the facts and only questions of law are involved. The point is not well taken. Defendants' answer controverted plaintiff's allegations of illegal use of the net. Defendants have never admitted an illegal use and their failure to offer proofs on the subject may not be taken as an admission, particularly after denial of their demand for a jury trial.

The statute under which these condemnation proceedings were brought is silent on the subject of a jury. Michigan Const.1908, art. 2, § 13, provides, as did Michigan's previous Constitutions, that 'The right of trial by jury shall remain, * * *.' Thus the right to trial by jury is preserved in all cases where it existed prior to adoption of the Constitution. Tabor v. Cook, 15 Mich. 322; Swart v. Kimball, 43 Mich. 443, 5 N.W. 635. The constitutional guaranty applied to cases arising under statutes enacted subsequent to adoption of the Constitution which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted. Guardian Depositors Corp. v. Darmstaetter, 290 Mich. 445, 288 N.W. 59. The right to trial by jury, in cases where it existed prior to adoption of the Constitution, may not be defeated by enactment of a statute providing for trial on the chancery side of issues formerly triable in proceedings at law. Tabor v. Cook, supra; Edwards v. Symons, 65 Mich. 348, 32 N.W. 796; Kamman v. City of Detroit, 252 Mich. 498, 233 N.W. 393. Where there are questions of fact to be determined and the issues are such that at common law a right to jury trial existed, that right cannot be destroyed by statutory change of the form of action or creation of summary proceedings to dispose of such issues without jury, in the absence of conduct amounting to waiver. See Risser v. Hoyt, 53 Mich. 185, 18 N.W. 611.

The precise question presented, then, is whether the proceedings here are of such character that a jury trial would have been available before adoption of the Constitution. Plaintiff says the proceedings are equitable in nature, as for abatement of a nuisance, and that in such cases juries were not employed prior to the Constitution. The statute under which this suit is brought does not provide, however, for an action in chancery. The procedure therein specified, including appeal in the nature of certiorari, is distinctly foreign to chancery and the proceedings are definitely not equitable in nature. Furthermore, the legislature did not declare nets used unlawfully to be a nuisance. Such nets may be put to a lawful use. They are not contraband. Cases cited holding that a jury trial is not essential in situations involving nuisances or contraband are, therefore, not in point.

Defendants do not claim that this is a criminal case, nor is it criminal in nature and for that reason entitled to be tried by jury. It is a proceeding in rem, to recover a penalty, and has as its purpose prevention of illegal fishing. See in this connection People v. Hoffman, 3 Mich. 248.

Defendants cite authorities, Minnie v. Port Huron Terminal Co., 269 Mich. 295, 257 N.W. 831; Mack S. S. Co. v. Thompson, 6 Cir., 176 F. 499; 1 Am.Jur. 549, 556; Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84, 105 N.W. 527, affirmed Iroquois Transp. Co. v. DeLaney Forge & Iron Co., 205 U.S. 354, 27 S.Ct. 509, 51 L.Ed. 836; C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S.Ct. 499, 87 L.Ed. 663, which consider the effect of the grant, by art. 3, § 2, Constitution of the United States, to the federal judiciary of power over all cases of admiralty and maritime jurisdiction and note that federal power in the field is exclusive, except as the Judiciary Act of 1789, 1 Stat. 73, saved to state courts jurisdiction to afford a common law remedy in that field where the common law is competent to give it. From this defendants conclude that the action at bar is either in admiralty, prohibited to the states, or an action at common law and, therefore, one in which a jury trial was guaranteed. The difficulty with defendants' contention is that, if it be assumed that the action is one as at common law, authorities antedating adoption of the Michigan Constitution appear to be lacking to establish that it is of such character that trial by jury necessarily followed as a matter of right. In point is the following from State v. Kelly, 57 Mont. 123, 187 P. 637, 638, where the court, in upholding the constitutionality of a statute authorizing a proceeding in rem against intoxicating liquors and their condemnation as forfeited property, said:

'Such summary proceedings as were known to the common law were not triable by jury, as a matter of right. 4 Bl.Com. 280. Summary proceedings of this character, authorized by the state in the exercise of its police power and designed to effectually suppress the unlawful traffic in intoxicating liquors, were unknown to the common law or to the statutory laws of this territory at the time our Constitution was adopted, and are not comprehended in the guaranty of trial by jury. Upon this question there is some diversity of opinion, but the decided weight of authority and the better reasoning support the view herein indicated. * * *

'It would not be questioned by any one that if the forfeiture of the liquors were a part of the penalty imposed upon a defendant for a violation of the law, the right of trial by jury would obtain; but, as observed heretofore, this proceeding is in rem, entirely distinct from, and independent of, the criminal prosecution, and having different objects and results in view.'

Defendants fairly and properly state that for collection of forfeiture cases resort should be had to 17 A.L.R. 568, 50 A.L.R. 97, and 23 Am.Jur. 614. The mentioned American Jurisprudence citation, namely 23 Am.Jur., Forfeitures and Penalties, § 18, contains the following:

'While property that is ordinarily used for unlawful purposes and is decreed to be a nuisance per se may be forfeited without a trial by jury under the police power of the state, that is...