Perkins v. Scott

57 N.H. 55 | N.H. | 1876

Lead Opinion

FROM GRAFTON CIRCUIT COURT. I do not think this report ought to be set aside. The affidavits taken together do not satisfy me that any objection as to interest or bias is made out which ought to furnish reason to the party for recusing the auditor. Neither do I think that the report ought to be set aside on the ground that the auditor law, so called, is unconstitutional. I understand the objection to be, that that part of the statute which makes the report of the auditor evidence to be used before the jury is in violation of the party's constitutional right to a trial by jury. This provision is an integral part of the statute. It is impossible to dispense with that provision, and leave that part which provides for sending causes to auditors with the meaning and force which the legislature intended to give it. If the auditor's report cannot go to the jury, the court cannot send the case to an auditor.

This being so, I think it clear that the objection must be taken, if at all, at the time of the reference. The party cannot be permitted to lie by and take his chance of getting a favorable report, and then, if he is not satisfied with it, cause it to be rejected.

I also hold, for reasons assigned in my dissenting opinion in the case of King v. Hopkins, Hillsborough June term, 1876, that the law is not unconstitutional.

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Concurrence Opinion

The historical researches of the defendant's counsel appear to leave our information with respect to the origin of the auditor law in this state about where it was before. As a statute, its first appearance, so far as now appears, was in 1823; and it was then enacted in pursuance of the recommendation of Governor Bell, in his message of the year before, that the law on this subject be "amended." It is conjectured that there was some kind of a statute on the subject in existence at that time, which is now lost; and it is said that the language used by Governor Bell gives countenance to that conjecture. It has also been conjectured that Governor Bell referred to the common law, and the practice of the courts thereunder; and the failure to find any prior statute, either published or unpublished, may be thought to give countenance to that conjecture. Further examination may settle the matter one way or the other; but, so far as regards the question raised in this case, I do not see that it makes any great difference which supposition be adopted. It is certain that in the act of 1823 no allusion is made to any prior statute, and the report of an auditor has always since that time been legally admissible as evidence for the jury to consider in cases coming within its terms.

If there was such a statute prior to 1823, passed either before or soon after the constitution, it would furnish almost if not quite conclusive evidence that the right of trial by jury, in matters of account arising in suits at law, was understood either not to exist at all, or to exist only in this modified form. If there was no statute, we should naturally next turn our attention to the practice of the courts, expecting to find there the same kind of evidence — that is, contemporaneous construction. But if no statute and no practice are to be found, as the defendant's counsel seems to hold, then, of course, we must look to some other quarter for light, or else decide the question is the dark.

It might be said that it is incumbent on one, who maintains that the qualified jury trial, allowed by the act of 1823, in causes involving matters of account, is all infringement of the jury trial of the constitution, to show that a jury trial in such cases, unqualified and untrammelled by the provision that the auditor's report should be evidence, was matter of absolute right at the time of the adoption of the constitution. But at this point we are confronted with the views of the majority of this court, as expressed in Copp v. Henniker, 55 N.H. 179; and it is said that the history of the jurisprudence of the province and state not only fails to show that a jury trial was uniformly "used and practised" in any case or class of cases before the constitution, but does shows on the other hand, affirmatively, that the contrary was true. The upshot of the argument, if I understand it, being to show not only that the defendant's claim in this case is utterly groundless and untenable, but that the majority of the court in Copp v. Henniker were wrong, for the same single, broad, and sweeping reason that there were no cases of any sort in which trial by jury can be said to have been the use and practice before the constitution, and so no cases to which the solemn mandate of that instrument enjoining that the right shall be kept sacred could be applied.

It seems quite clear that the defendant argues himself out of court; for if, during the period of our provincial history, there was no class of civil cases in which a trial by jury could be claimed as matter of legal right, it must follow that wherever by the grace of somebody — the omnipotent provincial legislature, the judicial governor and council, or the court — such trial was granted, that trial might be of just such character and possessed of just such attributes and characteristics as might be dictated by the opinion, the interest, or the caprice of those by whose favor it was allowed. And that being so before the constitution, by the express language of that instrument it would continue to be so afterwards; and when the legislature undertook to grant and establish, in any case, a right which the framers of the constitution so egregiously failed to fix, they might, of course, give it in just such form, subject to just such restrictions, limitations, burdens, and penalties, as they saw fit.

The constitution of 1784, as well as that of 1792, under which we now live, provides that "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced, the parties have a right to trial by jury; and this method of procedure shall be held sacred, unless, in cases arising on the high seas, and such as relate to mariners' wages, the legislature shall think it necessary hereafter to alter it." Bill of Rights, Art. 20. A serious argument to show what this solemn declaration in our bill of rights means something — that it as not a mere piece of turgid and high-sounding declamation, without force or effect as the supreme law of the state, for the reason that when it was uttered there were no cases in which it had not been theretofore otherwise used and practised — will doubtless be thought a novel production. But, unless the defendant's case is to be decided against him upon the ground taken in the argument, which has been urged upon us by his counsel, it seems necessary to notice briefly the somewhat startling proposition on which that argument is based.

It may safely be assumed, I think, that those who drew up and adapted the constitution entertained the honest belief that they were placing in that instrument something more than a well rounded period of empty verbiage. With the judicial history of the mother country for the last century and a half before them, with all the details of the fierce and protracted struggle between the people and the Masonian proprietors fresh in their minds, and with the eloquent and almost poetical panegyric of Sir William Blackstone (3 Bl. Com. 379), then lately given to the world, ringing in their ears, it is reasonable to believe that they were stimulated by a purpose to secure to the people of the state, beyond legislative interference or control, the benefits and advantages of the system which the great commentator so brilliantly portrayed; and to protect themselves and their posterity against the evils and mischiefs which history admonished them were sure to follow an infringement of the right.

It may be assumed, I suppose, that the jury trial was an established right of British subjects long before the earliest settlement of this state. Mr. Finlason says, — "It is probable that it is the most ancient part of our constitution, and consequently the most deeply rooted in our earliest institutions." Note to 3 Reeves's Hist. of English Law 302. In the charter of the council of Plymouth (November 3, 1620), it was provided that "All persons who may go to inhabit in said colony, and their children, shall have all the liberties of free denizens and natural subjects, as if born and residing in England." In the grant by the council of Plymouth to Gorges and Mason, of what was called the province of Maine (August 10, 1622), a covenant was carefully inserted, as follows: "And the said Sr. Ferdinando Gorges and Capt. John Mason doe further covenant for them, their heyres and assigns, that they will establish such government in the said porcons of lands and islands granted unto them, and the same will from time to time continue, as shall be agreeable, as neere as may be, to the laws and customs of the realme of England." In the grant of New Hampshire by the same council to Mason (November 7, 1629) — "The said John Mason doth further covenant for him, his heirs and assigns, that he will establish such government in the said portion of lands and islands granted unto him, and the same will from time to time continue, as shall be agreeable, as near as may be, to the laws and customs of the realm of England." In the commission to John Cutts, first president (September 18, 1679), after prescribing with some minuteness of detail the duties of the president and council as a "setled Court of record," we find this: "So always y[t] y[e] forms of proceeding in such cases, and y[e] judgment thereupon to be given, be as consonant and agreeable to y[e] Laws and Statutes of this Our Realm of Eng[d], as y[e] p[r]ent state and condition of our subjects inhabiting within y[e] limits aforesaid, and y[e] circumstances of y[e] place will admit." Cranfield, by his commission, was empowered to "erect, constitute, and establish such and so many courts of judicature and public justice, within the said province and plantation within your government, as you and they shall think fit and necessary for the hearing and determining of all causes, as well criminal as civil, according to law and equity." 1 N.H. Prov. Pap. 9, 14, 25, 376, 437. It was, perhaps, the Masonian litigation that suggested further guaranties with respect to the right of trial by jury. At all events, in the judiciary act of 1692 we find this section: "And Be it further Enacted by the Authority aforesaid, That no persons Right of property shall be by any of the aforesaid courts determined, Except where matters of fact are either acknowledged by the parties, or judgment be acknowledged, or passeth by the defendant's fault for want of plea or answer, unless the fault be found by the Verdict of Twelve men of the neighborhood, as it ought of Right to be by Law." This act, as was observed in Copp v. Henniker, 55 N.H. 186, was substantially reenacted by the judiciary act of 1699, which contained no repealing clause, and remained in force until the revolution, and was substantially reenacted in 1776, and again in 1786.

[EDITORS' NOTE: THE MATERIAL CONTAINED WITHIN BRACKETS WAS SUPERSCRIPT IN THE ORIGINAL TEXT.]

One of the "injuries and usurpations, having in direct object the establishment of an absolute tyranny over these states," which was charged upon George the Third by the Declaration of Independence, was, — "He has combined with others to subject us to a jurisdiction foreign to our Constitutions and unacknowledged by our laws; giving his assent to their acts of pretended legislation: * * * For depriving us, in many cases, of the benefits of trial by jury."

It will hardly be contended that when the framers of the constitution spoke of cases in which it had been theretofore otherwise used and practised, they meant cases where the subject had theretofore been despoiled and deprived of the right by the usurpation and tyranny of the king; nor can it with any greater reason be claimed that they meant cases where the right had been lost by the usurpation of the royal governor, the interference of the provincial legislature, or the ignorance, incapacity, or corruption of the courts. They clearly meant to except cases in which it had been theretofore legally otherwise used and practised, and not those in which it had been otherwise used and practised in plain violation of law, and in derogation and defiance of the right of the citizen, as established and secured to him by the British constitution, and plainly laid down and defined by the provincial act of 1692.

The irregularities and usurpations, which the industry of the defendant's counsel has discovered in the administration of the municipal law of the province, do not lead my mind to the conclusion that the right of trial by jury is not guaranteed, in any case, by the constitution, any more than the usurpations and tyranny of the king, denounced in the Declaration of Independence, lead to the same conclusion. If a provincial legislature usurped judicial functions, there might be no immediate remedy at hand; but such usurpation would not be a repeal of the act of 1692, and the people never showed any disposition to surrender the right secured to them by that act, as well as by the stronger guaranties of the common law, which was theirs both by inheritance and by charter.

This is enough to show, as I think, that the court cannot decide this question against the defendant upon the ground that the constitution does not really and absolutely secure the right of jury trial in any case.

The question then is, whether in matters of account — that is, cases which come within the terms of the auditor law of 1823 — a jury trial was the legal use and practice before the constitution.

There are two things which probably will not be denied: first, that long before the adoption of the constitution the investigation and adjustment of accounts had come to be matter of well understood and admitted equity jurisdiction; and, second, that until the case of Marston v. Brackett,9 N.H. 336, decided in 1838, it had not been intimated in this state, or anywhere else, that there was a light of trial by jury in equity proceedings. I venture to say that if such a right ever existed in this state, it was after and not before the observation of Chief-Justice PARKER in that case. It is not necessary, in the view I take, to inquire whether that observation established such a singular and anomalous doctrine in this state or not. It is enough that up to that time all the books and cases, wherever the common law prevails, are the other way. It adds very little to the argument, one way or the other, so far as I can see, whether any provincial court ever in fact exercised chancery powers, making use of the forms of proceeding usually employed for that purpose in England, and latterly in this country. Nor does it appear to be of much consequence whether Judge BELL was right when he said, in Wells v. Pierce, 27 N.H. 512, that "Equity, as a great branch of the law of their native country, was brought over by the colonists, and has always existed as part of the common law in its broadest sense in New Hampshire;" and that the act of 1692, establishing the governor and council a high court of chancery, was never repealed; or whether Governor Bell was right, when, thirty-two years before, in his message to the legislature, he made the remark quoted in in Copp v. Henniker, p. 211, viz., "Our ancestors, who adopted in general the laws of that country from which they originated as the basis of their code, omitted to introduce into practice that part of the system which pertains to chancery jurisdiction." Suppose, at some period after the adoption of the constitution, and before the act of 1832 conferring general equity powers upon the supreme court, the legislature had given to the court a single isolated branch of equity jurisdiction and power, — as, for example, that of decreeing the specific performance of contracts, without creating it a court of chancery by name, and without providing that any of the forms of chancery proceedings should be observed: if such a thing were done, I do not see how it can be doubted that the legislature might make such provisions, with respect to the mode of settling the facts upon which the relief sought depended, as they might think proper; and, if a jury trial were provided, that trial might be granted, subject to such limitations and qualifications as appeared to them expedient and just.

In the case supposed, what difference could it make whether the equity power to enforce the specific performance of a contract had ever been exercised by any tribunal, either in the province or the state, before or not? If it was a power never used nor practised in the province before the constitution in any form, then to determine the true application of the terms "heretofore used and practised," as used in the bill of rights, we must go to the common law with respect to the new right and power thus conferred; and, doing that, we find it not to be a case in which it had been used and practised anywhere before the constitution, to have a trial by jury as matter of legal right. Why does not this reasoning apply to the auditor law? The investigation of accounts was a branch of equity jurisdiction in which a right of trial by jury did not exist. When the legislature made provision for a jury trial in such cases, why could they not fix and determine the character of such trial — upon what conditions and under what limitations it should be had, as well as in the other case supposed?

It probably is not capable of demonstration that this view is correct; but I think it is greatly strengthened by the long acquiescence in the auditor law. Without disparagement to any living member of the bar in this state, it may be said that the legal scrutiny directed upon the auditor law at its first appearance, and in its early operation, must have been equally acute and searching with that which met the referee law of 1874. The jealousy with which the right of trial by jury has been watched and guarded has not increased in this state any more than in other parts of the common law world for the past half century. Unless the provision in that law, making the auditor's report prima facie evidence to the jury, stood upon some ground that was familiar, and admitted to be sufficient by that generation of lawyers, it seems inconceivable that it should have been permitted to pass unchallenged.

The constitution of Vermont contains a provision, "That when any issue of fact, proper for the cognizance of a jury, is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." Part 1, Art. 12. By an early statute of that state, minute and detailed provisions are made with reference to the action of account. Upon the entry of such action in court if the defendant shall plead in defence any plea which, being true, he ought not to account, it may be tried by a jury; and if the verdict be found against him, or if the defendant shall not appear, or, appearing, confess that he ought to account with the plaintiff, the court shall render judgment that he do account. When judgment to account shall be rendered, the court shall appoint one or more judicious and disinterested men to to hear, examine, and adjust the accounts between the parties. Then it provides for notices, hearing, c., the return of a report, and rendition of judgment thereon by the court if no just cause be shown to the contrary; which judgment shall be final between the parties. There is no trial by jury in such cases, except upon the question of whether the defendant is liable to account with the plaintiff; and I am not able to learn that the constitutionality of the act has ever been questioned. But when a reference law, with provisions very similar to those found in our act of 1874, was passed by the legislature of that state in 1856, its validity was immediately denied, an the court, without hesitation, declared it to be in conflict with that clause of the constitution which I have quoted. Plimpton v. Somerset, 33 Vt. 283. This would seem to show a state of things in Vermont very similar to that existing here — that is to say, either extraordinary obtuseness on the part of the early lawyers of that state, or extraordinary acuteness on the part of the later ones; or else that matters of account never came within the constitutional provision, either for the reason I have supposed, or for some other reason which was known to be sufficient by the early interpreters of the constitution. It is in this view that I deem the acquiescence, for more than half a century, in the auditor law entitled to great weight in determining the question presented by this case. It fortifies my opinion that it was not understood by the framers of the constitution, their contemporaries, or immediate successors, that there was ever an absolute right of trial by jury in matters of account; and that being so, when such a right was given upon the coming in of the report of an auditor, most clearly it would be within the power and discretion of the legislature to shape the trial according to their views of what the public good required; and so they might burden it with the condition that the report should be used as evidence in the trial before the jury.

Upon the whole, I am by no means satisfied beyond a reasonable doubt that there was in 1792 a legal right to trial by jury in that class of cases which come within the operation of the auditor law, and I therefore hold that the ruling of the court below, admitting the report in this case as evidence to the jury, in accordance with the provisions of that law, must be sustained.

As to whether that part of the law, empowering the court to send certain cases to an auditor, could be sustained, provided the part making the report evidence were in conflict with the constitution, need not be inquired, for two reasons: first, the question is not raised by the case; second, the court are agreed that the whole law is to be sustained.

No question of waiver is before us, as I understand the case. Doubtless the right to a jury trial, like many other constitutional privileges affecting private property and the rights of individuals, may be waived. I may say, however, that I, for one, should hesitate before holding that the citizen, merely by silently yielding a temporary and constrained obedience to an unconstitutional statute, thereby debars himself from calling in question the validity of the law for the vindication of his violated lights. It perhaps would not be unreasonable to hold that party moving that his cause be sent to an auditor, thereby signifies his willingness to accept the qualified jury trial permitted by the statute after the coming in of a report. But as this question is not in the case, the subject need not be pursued.

SMITH, J. The framers of the constitution, in asserting in Art. XX of the Bill of Rights the right of trial by jury, "except in cases in which it has been heretofore otherwise used and practised," clearly recognized that there were one or more classes of cases in which trial by jury could not be demanded as matter of right. There is no doubt that at common law there were many cases in which a trial by jury could not be had. The law in relation to auditors undoubtedly, to some extent, grew out of actions of account, or took the place of suits in equity in relation to such matters. To what extent the practice obtained in this state of trying actions involving matters of account without a jury, it is not easy exactly to establish. But I am satisfied that the causes included within the provisions of the auditor law are also included within the exception in Art. XX of the Bill of Rights. It is difficult otherwise to understand how such a law could exist upon the statute-book of the state for more than half a century without its constitutionality being questioned. That it was not drawn in question until the controversy in regard to the act of 1874 authorizing compulsory references arose, affords very strong evidence of what has been the practical understanding of the profession as to the constitutional right of the legislature to enact such a law. If this be so, then the legislature, when it enacted the statute of 1823 in relation to auditors, might have authorized a judgment without the intervention of a jury, and, being under no constitutional compulsion to give a jury trial, when it gave it the gratuity could be coupled with such conditions as it saw fit to impose.

We held, in Doyle v. Doyle, 56 N.H. 567, that it is too late to question the constitutionality of this law, and the discussion and further examination in this case have only satisfied me of the correctness of that holding.

As we hold the law to be constitutional, there is no occasion to discuss the question of waiver.

Exceptions overruled.