State v. Neterer

• Decision Date: 17 December 1903
• Citation: 74 P. 668,33 Wash. 535
• Parties: STATE ex rel. CLARK v. NETERER, Judge.
• Court: Washington Supreme Court

74 P. 668

33 Wash. 535

STATE ex rel. CLARK v. NETERER, Judge.

Supreme Court of Washington

December 17, 1903

Mandamus on the relation of F. J. Clark, to Jeremiah Neterer, judge of the superior court of Whatcom county. Writ denied.

Marshall P. Stafford, for relator.

Parker Ellis, for respondent.

MOUNT J.

Application for writ of mandamus. The relator is plaintiff in a civil action triable by jury. The case is at issue and ready for trial in the superior court of Whatcom county. The respondent is judge of that court. September 5, 1903, was a day appointed for setting jury cases for trial in that court. On that day the parties to said action appeared in court, and the relator requested the court to set the case for trial. Neither party had served or filed the statement, or deposited the fee, required by the act of March 6, 1903, relating to jury trials. Laws 1903, p. 50, c. 43. For that reason the court refused to set the case for trial before a jury. Upon application made here this court issued an alternative writ of mandamus, directing respondent to set the case for trial, or to show cause why he should not do so.

The only question presented upon the return to the writ is the constitutionality of the act of 1903, above referred to. It is contended by the relator that the act is unconstitutional because it is repugnant to section 21, art 1, of the Constitution, which reads as follows:

'The right of trial by jury shall remain inviolate, but the Legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.'

The statute of 1903 is as follows:

'Section 1. In all civil actions triable by a jury in the superior court any party to the action may, at or prior to the time the case is called to be set for trial, serve upon the opposite party or his attorney, and file with the clerk of the court a statement of himself, or attorney, that he elects to have such case tried by jury. At the time of filing such statement such party shall also deposit with the clerk of the court $12. Unless such statement is filed and such deposit made, the parties will be deemed to have waived trial by jury, and consented to a trial by the court.

'Sec. 2. The amount deposited by the party demanding a trial by jury shall be a part of the taxable costs in such action. The amount received by the clerk on account of jury fees shall be accounted for as such other fees received.

'Sec. 3. Section 5028, Ballinger's Ann. Codes & St., and all other acts in conflict with this act, are hereby repealed.'

The section of the Constitution above referred to clearly authorizes the Legislature to provide for 'waiving of the jury in civil cases where the consent of the parties interested is given thereto.' Under this provision it is quite clear that there can be no waiver of a jury trial in civil causes where there is no consent of the parties, express or implied, and the controlling question here is, may the Legislature provide for any other consent than express consent? If not, then the act in question must be declared unconstitutional. It is argued by the relator that the word 'waiving' implies consent, and that the words 'where consent * * * is given,' as used here, necessarily mean express consent, and that the Legislature, therefore, may not provide for an implied consent, as has been done in this act. It seems to be the general rule that the provision found in the Constitutions of nearly all the states of the Union, as follows, 'The right of trial by jury shall remain inviolate,' means that 'the right is preserved in substance as it existed at the time of the adoption of the Constitution, and in the classes of cases to which it was then applicable.' 6 Am. & Eng. Enc. of Law (2d Ed.) p. 974, and cases cited. It is also 'generally conceded that in civil actions and proceedings, and in the absence of constitutional or statutory inhibition, the right of a party to have the issues of fact in a cause determined by a jury is a privilege of such a nature that he may waive it if he chooses.' 17 Am. & Eng. Enc. of Law (2d Ed.) p. 1097, and cases cited. The form and manner of such waiver is usually regulated by statute, and where there is no provision in the Constitution prohibiting such legislation it is upheld. Garrison v. Hollins, 2 Lea, 684; Copp v. Henniker, 55 N.H. 179, 20 Am. Rep. 194.

We have compared this provision of our Constitution with similar provisions in Constitutions of nearly all the other states, and find no other provision exactly the same as ours. In Arkansas, California, Colorado, Idaho, Michigan, Minnesota, Montana, New York, Nevada, Texas, and Wisconsin, the substance of the provision relating to jury trials in civil cases is, 'Trial by jury shall remain inviolate, but a jury trial may be waived by the parties in the manner prescribed by law.' In these states it is clear that an act such as the one under consideration is a valid exercise of legislative authority. In most of the other states the provision, 'The right of trial by jury shall remain inviolate,' stands without modification, as in the states above named. But it is held, however, that a party waives his constitutional right by a neglect to comply with the regulations prescribed by law. Commonwealth v. Whitney, 108 Mass. 5; Wilkins v. Treynor, 14 Iowa, 391; Merrill v. City of St. Louis, 83 Mo. 244, 53 Am. Rep. 576. Mr. Freeman, in his note to Flint River Steamboat Co. v. Roberts, 48 Am. Dec. 178, at page 186, says: 'The provisions in the several state constitutions, guarantying the right of trial by jury, differ somewhat in form. But the general principle contained in all of them is that the right of trial by jury, as known and exercised by the people of the state at the time of the adoption of the Constitution, shall be preserved and guarantied to them under the Constitution. In order, therefore, to determine in what cases the right to trial by jury in any particular state exists, it is necessary to definitely ascertain what was the extent of the right to that mode of trial, under the established law and practice of that state, at the time when it adopted its Constitution.' Authorities are cited in support of this rule, amply sustaining it. It is applicable, we think, to the construction of the section of our Constitution under consideration.

The statutes bearing upon the question of waiver, in force at...