Home Insurance Co. v. Security Insurance Co.

| Wis. | Jun 15, 1868

DixoN, O. J.

The legislature has not attempted to compel the parties to submit to a trial by referees in actions of this nature. The statute merely provides that all or any of the issues in this action, whether of fact or of Jaw, or both, may be referred, upon the written consent of the parties. R. S. ch. 132, § 22. The counsel for the plaintiff, however, contend, as the judicial power of the state is vested by the constitution in certain courts, that it can only be exercised by those courts, and that it is incompetent for the legislature, even with the assent of the parties, to provide for its exercise by any other body or tribunal. But it is clearly competent for parties themselves, to any litigation or controversy, not a proceeding for crime, without the assent of the legislature, to waive their constitutional rights with regard thereto. They may waive their right under the constitution to have the same heard and determined by the courts and juries of the country. They may do so by submitting to an arbitration as at the common law. Would it affect the validity of such waiver that the legislature had assented to or authorized it, or prescribed the means by which it may be accomplished ? It seems to us not. Nor do we think that it is incompetent for the legislature to pass such laws, the validity of the transaction therein provided for being made to depend entirely on tlie will of the parties interested in them. The constitution provides that the property of no person shall be taken for public use without just compensation therefor. It is well known that this provision securing the rights of the citizen may be waived. The owner is not obliged to accept or receive compensation unless he chooses ; and if the legislature should see fit to prescribe by statute how such right to compensation might be waived, or what should be the evidence of it, it being left optional with the owner to waive it or not, it is presumed that no one would contend that such statute would be void, or in any manner conflict with the constitution. The question here is quite analogous. It was optional with the parties to waive a trial before the court and a jury, or not to waive it, as they saw fit. They deemed it expedient to waive such trial, and by stipulation in writing to consent to a trial before the referee named ; and it is now-too late for the defendant to raise the objection urged by its counsel.

The only exception to the report of the referee as to his finding of facts is, that he erred in finding that the defendant disposed of the wheat without the consent of the plaintiff. By this exception we are limited in our examination to that single question of fact, and cannot, as the counsel for the defendant seem to suppose, go into an investigation or review of the facts generally, or of the evidence upon which the referee found them. Upon the question of fact before us we are quite satisfied that the referee was correct. There is no satisfactory evidence that the plaintiff or its agents ever assented to the sale of the wheat. On the contrary, the fact that they did not assent seems to have been pretty clearly established. The agents of the plaintiff both testify that they gave no authority whatever to sell the wheat; and the agent of the defendant, who sold it, testifies that the agent of the plaintiff, with whom he conversed, gave him no instruction or advice whatever.

The other exception of the defendant to the report of the referee is, generally, to his conclusions of law. Supposing such exception to be well taken, it is manifest, the facts found by the referee being true, that his conclusions of law are cor-reet. These are not indeed disputed by counsel for defendant, who argue the case almost exclusively upon questions of fact which, we have seen, are not before us.

By the Court. — Judgment affirmed.