264 MINNEQUA COOPERAGE CO. V. HENDRICKS. [130 MINNEQUA COOPERAGE COMPANY V. HENDRICKS, JuDGE. Opinion delivered June 25, 1917. CONSTITUTIONAL LAW—JURY TRIAL—VERDICT BY NINE JURORS.— The act of the Legislature of 1917, authorizing a verdict by less than the whole number of jurors in a case, is invalid, and in violetion of the Constitution of 1874. • Mandamus to Pulaski Circuit Court ; G. W. Hen-dricks, Judge ; affirmed. J. A. Comer, for petitioner. 1. It was the duty of the court to receive the verdict and enter judgment thereon. Even if Act 52 is in conflict with the Constitution, no objection was made, and the right to a unanimous verdict of twelve jurors was waived. It was the duty of the court to receive the verdict and enter judgment thereon. Kirby & Castle's Digest, § § 7343, 7682, 7687 ; 44 Ark. 202 ; 79 Mo. App. 627 ; 19 Ohio Cir. Ct. Rep. 425. W. H. RectOr, for respondent. 1. Act 52, Acts 1917, is unconstitutional and void. A jury is twelve men and the verdict must be unanimous. The Legislature can not abridge the number. Art. 11, Sec. 7, Const. 1874 ; 32 Ark. 17 ; 16 Id. 384 ; 8 Id. 436; 47 Id. 568 ; 8 Id. 372 ; 2 Reeves' History Common Law, 270 ; 2 Hale's Pleas of the Crown, 161 ; 2 Blackstone's Comm. 349 ;
ARK.] MINNEQUA COOPERAGE CO. v. HENDRICKS. 265 Chitty, Cr. Law, 505; 7 Amend. Const. U. S. ; 166 U. S. 464; lb. 707; 241 Id. 211 ; 174 Id. 1; 170 Id. 323 ; 33 L. R. A. 441. All the States having provisions similar to ours, have held the necessity for a unanimous verdict of a jury of twelve. 186 Mo. 269; 85 S. W. 378 ; 171 Mo. 84; 70 S. W. 891 ; 1 Mtnit. 118 ; 41 N. H. 550 ; 110 Pa. St. 387 ; 2 Atl. 531 ; 9 Wyo. 157; 51 Pac. 466 ; 24 Cyc. 185 ; 126 Thd. 508 ; 2 J. J. Marsh (Ky.) 40; 12 Md. 514 ; 11 Pick. (Mass.) 501 ; 70 Miss. 247; 9 Heisk. (Tenn.) 248 ; 56 Tex. 331 ; 14 Gratt. (Va.) 630; 6 Wis. 205. 2. The parties did not waive a jury trial. 114 Wis. 516; 68 N. Y. Supp. 806; 58 N. E. 576 ; 45 Id. 145 ; 163 Ill. 652 ; 78 Miss. 525 ; 84 Me. 304 ; 172 N. Y. 482. 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 twelve 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
MINNEQUA COOURAGE CO. 1.)._;TTRI9MOAK. [INA tfe,be,returned and judgment to be, rendered upa. iti:Lq.E10 it _can not be said that the plaintiff, in the' waiNze id,A-unanimous verdict, or that his conduct amounted agreement that a less number than the whole naight ffy.turn ai ,yerdict : If the court had accepted the verdipt And, had • inade no objections, it might be said thathQ9mi1dn9t; smculate 'on the verdict by allowing it to b9,.retgrnpcd,. without. objection, And then when he foimd,that it wakl against him, object to it. Here, however, 9a2e-icqury.ye-: fused to receive the verdict. This brings us to the question of whetker t1e,;4gis-lature has the power to provide that a numher of the Retit jury less than the whole may render , dverdiccin a, case where the Constitution gives to the , party pelt to„ a trial by jury. This was a coimnon law action and th:e right of a trial by jury is guaranteed by . our, Constitution. Govan, v. Jackson, 32 Ark. 553, and State v. Chu/A48 Ark. 426. • .• Section 7 of the Declaration of Rights of. our Con-- stitution reads as follows : -1 " The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to,the athount in controversy ; but a jury trial may be waivAcliby the parties in all cases in the manner prescribed-IT,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 can not abridge the number. Laralian, v. Lane, 8 Ark. 3172 ;, State v. Cox, 8 Ark. 436 ; Cairo & Fulton Railroad Co. v. Trout, 32 Ark. 17. 'io „ Theso decisions settle beyond controversy that the wOrdsr` q rial by jury,” as used in the section of the Con-stitotion under consideration, must be given their com-rnOMaw meaning. At common law the essential elements-
coapnidoe6. V? iniffififd16. k of rial 'bY jurỳ are r arid -alw -aYs-haViiwn7akiliab -6ii,Aiii-artiality -and Unanimity: . On :this que'Stion 'the :great -English commentator 'Said: ' • Upon these ac • co • unts the triat -. by jU -• r y • • ; e'V • er Ias'been arid I trust ever will be," looked upbri as the gloff of the English laW. And if it has :so gre'dt' an adVantke 'over others iri regulating • CiVil prOperty, hoW. mileh Mus't• advantage be heightened when it isTapplied • to Criminal cases. But 'thi's we* Must refer to the ensning book of these commentaries ; only observing • f or the prdserit*t it is the most transdendent privilege which any subjeCt can enjoy, or wish for, that he can not be 'affected either'in his property, his liberty, or his persdn, 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 twelye members con-Otuting the jury is an essential •ttribirte of a trial 'hy jury. Proffatt on Ju. ry ,Trial; sec. 76; et seq. The authoir , goes , On for -gie the reasons 'for and against the requirement, tdit we are not Concerned with that, for, as already seen, our 'Constitution has used ' the word in-its'cOnnnon-law sense. In Lommen v. Minneapolis Gas Light Co., 60 A. S. R. 450, the Supreme Court of the State of Minnesota held • that a 'statute providing for struck jurors does not in--fringe 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 Consiitution said: ' • " The expression 'trial by jury' is as old as ilagna Cha•rta, and has obtained a definite historical meaning, t Which is well understood by all English-speakirig peoples ; and, for that reason, no American Constitution had ever lassumed' to define it. We are, therefore, relegated to the instorY df the common law to ascertain its meaning. - -noD `1The!! essential and substantive attributes Or ele--irlintsoofcjtry trial are and always have been, number, impartiality and unanimity. The jury must consist of
268 MINNEQUA COOPERAGE CO. v. FfENDRICKS. [130 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 (Fla.), 24 L. R. A. 272, and case note ; City of Denver v.' Hyatt (Colo.), 63 Pac. 403; Carroll v. Byres (Ariz.), 36 Pac. 499; Lawrence v. Stearns, 11 Pick. (Mass.) 501 ; American Publishing. Co. v. Fisher, 166 U. S. 464; Klein-chmidt v. Dunphy, 1 Mont. 118 ; First National Bank of Rock Springs v. Foster (Wyo.), 54 L. R. A. 549 ; Bradford v. Territory (Okla.), 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, 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 to the Constitution of the United States. Chief Justice Fuller, in reviewing the construction placed upon the act by the territorial court of Utah, said : • "In our opinion the Seventh Amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common-law cases, and the act of Congress could not impart the power to change the constitu-
ARK.] MINNEQUA COOPERAGE CO. v. HENDRICKS. 269 tional role, and could not be treated as attempting to do so." In M. & St. L. R. R. Co. v. Bombolis, 241 U. S. 211, Chief Justice WHITE said: "It has been so long and so conclusively settled that the Seventh Amendment exacts a trial by jury according to the course of the common law, that is, by a unanimous verdict (citing cases), that it is not now open in the slightest question that if the requirements of that amendment applied to the action of the State of Minnesota in adopting the statute concerning a less than unaninious verdict, * * * both the statute and the action of the court were void because of repugnancy to the Constitution of the United States." In that case, the court held that . the requirement of the Seventh Amendment did not control the State courts, even when enforcing rights under a Federal statute like the Employer's Liability Act. By the Constitution of Minnesota in civil causes, after a case has been under submission to a jury for twelve hours without a unanimous verdict, five-sixths of the jury are authorized to reach a verdict, which is entitled to the legal effect of a unanimous verdict at common law. In several of the States majority verdicts may be rendered in civil oases, but this is the result of express constitutional authority. In construing sections of the Constitution similar to the one under consideration the courts have uniformly held that any legislation authorizing a verdia by less than the whole number of jurors in any case where a jury trial is a matter of right is unconstitutional, unless such legislation is expressly authorized by a constitutional provision. On this point in addition to the authorities cited above, see 24 Cyc., p. 186, and cases cited. The reason is that the words "trial by jury" were used by the framers of the Constitutions of the various States in their com-mon-law sense. It follows that the act of the Legislature under consideration is unconstitutional and the prayer of the petition will be denied.
ea0 • MINNEQIJA COOPERAGE CO. v. HENDRICKS. [130 oj McCULLOCH, C. J., (dissenting). The Declaration of Rights embodied in the Constitution merely provides pat "the right of trial by jury shall remain inviolate." ` It does not specify what number of men shall constitute a j jury, nor how the verdict shall be rendered. That is left, the silence of the Constitution on the subject, to legis-'five regulations. The purpose of the framers of the onstitution was to preserve, in this State, the principle RY.trial by jury, and not to prescribe any particular form IS T which the remedy shall be applied. There is no magic , p,particular numbers, and it is difficult for me to believe aat those who inserted the declaration of principles into b opr organic law intended to hamper the Legislature in refOrming legal procedure from time to time so as to keep ace with advanced thought. Any other view constitutes e worship of mere form instead of preserving a prin-td.A. G.. lo The principle of trial by jury found expression in I some form or other long before it was declared or _moulded into modern shape under the common law of 0 .Fngland. The history of its origin and giowth is an in-zteresting study, but has little bearing, I think, on the aipterpretation of the language of our constitutional guar-,E ar i , ty on the subject. The fact, which must be conceded, .ibat as created under the common law, a jury trial was maderstood to mean . the unanimous verdict of a jury of htwelve impartial men, does not necessarily imply that the 9 trAmers of the Constitution intended to perpetuate that anode of trial in the particular form then in vogue. That _kW of trial was a growth, and to hold that the language the Constitution fastened itself on the particular hi-Amnia, is to say that all further progress on the subject Outs intended to be stopped. Why should we say that in AlAi enlightened age in which our Constitution was dgpted, it was intended to hinder further progress in the form of a remedy, of which the history of our jurispru-..filoRce bears witness to so much wholesome growth? From nall and uncertain beginning, the principle of trial by jury had, in course of centuries, taken practical form,
ARK.] MINNEQUA COOPERAGE CO. v. HENDRICKS. 27it which was well understood, but there is now little, ifignyg disagreement in the opinions of thoughtful men thatythOi common-law requirement of unanimity of a juYD1.5011liott is a serious impediment to rational enforcement; [dial; laws, both civil and criminal. Did the framers ,otatim Constitution mean to prohibit the Legislature froM rept° lating jury trials by providing for a greater orlesS , 111411B ber of jurors than twelve and for a verdict of jesthati the whole of the jury? I think not. Constitutions are usually mere declarations of Ipitinu ciples and not specifications of details. This i&particail larly true of the provision now under consideratioripitut it appears in the Declaration of Rights where, enumen-o ations of principles are found in general terfns. i arm I am, of course, aware of the fact that near1y:adflraf9 the courts which have passed on the question, held ithat a constitutional guaranty of the right of trial means a trial bY a jury of twelve, and a unanimous9villml diet, according to the practice at common lawt!..'13-M lb think the decisions are wrong. They follow each kither blindly, and it seems to me to be the tinie to stop. , firhiq • cisions on that subject do not become rules of proPertsp,1 and there is no obligation to follow them when ft:40[th) be wrong. The Supreme Court of the United States has, in perhaps stronger terms than any other court adhered to the view that "trial by jury" necessarily means the unanimous verdict of a jury of twelve men, but its position on that subject seems to me to be inconsistent with the foxce-1 ful and wholesome doctrine announced as follows by3hat court in the case of Hurtado v. Calif ornia, 110 U. S t 516: "It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our " gys-tem a different place and performed a different function2 ftom their position and office in English constitutional history and law, they would receive and justify a cOtre-sponding and more comprehensive interpretation. : -, 'Applied in England only as guards against executive .upur-pation and tyranny, here they have become bulwarka.also
272 [130 against arbitrary legislation ; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they would be held to. guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty and property. Restraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power ; and while in every instance, laws that violated express and specific injunctions and prohibitions, might, without embarrassment, be judicially declared to be void, yet, any general principle or maxim, founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent, and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment." My conclusion is that the statute of this State providing for the rehdition of verdicts in civil oases by three-fourths of the jury is not in conflict with the Declaration of Rights in the Constitution.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.