Lead Opinion
The foregoing pleadings supplemented by statutes to be presently quoted, tender the issue, and form the basis on which this cause is to be determined.
Section 29, referred to and relied on by respondent in his return as justifying and validating rule 37, is the following:
“ In every city in the state of Missouri, having over one hundred thousand inhabitants, all courts of record in which juries are required shall have power, upon the application of either party, to order a special jury for the trial of any cause, if the application be made at least three days before the trial, and when ordered, the jury commissioner, as he may be directed by the court, shall select and furnish to the proper officer of said courts the names of the persons to be summoned for such special jury, and said officer shall summon them according to the order of the court, and make out and deliver to each party, or his attorney, a panel of the jury so summoned; but the costs of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the costs of the special jury shall be taxed as other costs against the losing party.*512 The provisions contained in sections 17, 18, 19, 20, 21, 23, 24, and 25 of this act, in relation to the summoning and service of common jurors and to the duties and liabilities of persons in said sections respectively mentioned, and to the penalties in said sections respectively provided for in respect to common juries, shall, in like manner, be construed to apply also to the summoning and service of special juries, as by this section provided for.” R. S. 1889, p. 2169.
As seen by the statement therein, the act which section 29 formed was passed March 17, 1885,'and is now to be found 2 Revised Statutes, 1889, p. 2169, as well as on pages 74, 75, Laws, 1885. The sections referred to therein are sections tobe found in the Laws of 1879, pages 28 to 37, approved April 11, 1879, which contain sections 1 to 29 inclusive, and the act of 1885 was amendatory of the act of 1879, and refers to some other sections of that act, which act is to be found in 2 Revised Statutes, 1889, pages 2160 to 2170 inclusive, substantially as enacted in 1879, with the exception of section 29 aforesaid.
The act of 1879 until amended by the act of 1885 aforesaid, related solely to common juries, providing, as it does, for a canvass of the city, and the ascertaining by personal inquiry, etc., every person qualified in the city for jury duty, save those who are otherwise excluded or excused by the act.
A clause in section 8 of the act designates wlm shall be enrolled: “And every male citizen of this state resident in such city, sober and intelligent, of good reputation, over twenty-one years of age, and not. exempt from jury duty by the general laws of this state, or otherwise disqualified or excused as provided in this-act, shall be deemed to be qualified for and subject to-the performance of jury duty under the provisions, hereof.”
It is specially noteworthy of section 29 of that act, heretofore quoted, that it makes a distinction in terms-between a special jury and common jurors, and while it. retains certain specified sections used for the purpose of the “summoning and service of common jurors,” yet it wholly and very significantly omits to mention or allude to section 16, supra, which is the one alone which describes and prescribes the method to be employed by the commissioner when he draws the names of common jurors from the wheel. This omission, after such specific mention and enumeration of eight other sections of the same act, invites and justifies the application of the maximexpressio unius, etc., or affirmative specification excludes implication. Dwarris on Stat. 605; Maguire v. Savings Ass’n, 62 Mo. 344; State ex rel. v. Laughlin, 73 Mo. 443; Ex parte Snyder, 64 Mo. 58; State ex rel. v. Woodson, 128 Mo. loc. cit. 514.
At the same session of the legislature at which the act of April 11, 1879, was passed, it being revising session, another act was passed which was a general law giving all parties the right to a special jury, upon certain conditions being complied with, which act still remains in force and is the following:
“Either party to a cause pending in the circuit, court or court of common pleas or criminal court of*514 any county, and triable by a jury, shall be entitled, as of course, to an order for special venire on motion made therefor, three days before that on which the case is set for trial; but the cost of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the ease was one for the trial of which a special jury should have been ordered, in which case the costs of the special jury shall be taxed, as other costs, against the losing party. This section shall apply to cities having over one hundred thousand inhabitants, as fully as to all other parts of the state.” R. S. 1879, sec. 2802.•
This section just'quoted is the same (so far as material to note) in the revision of 1889, section 6089, ■except that the number of inhabitants is raised to three hundred thousand. There can be no question that this section applies to the city of St. Louis, because we take judicial notice of the fact that that is the only city in this state having such population. State ex rel. v. Herrmann, 75 Mo. 340, and cases eited; State ex rel. v. Wofford, 121 Mo. 61.
It follows from the foregoing that section 2802, Revised Statutes, 1879, now section 6089, Revised .'Statutes, 1889, must be construed in connection with section 29, Revised Statutes, 1889, page 2169, :and as forming part and parcel of the same law, and as being in pari materia (Sutherland, Stat. Con., secs. 284, 288), saying nothing about section 6089 making direct reference to cities of the class of St. Louis.
In our earlier statutes, Revised Statutes, 1835, 1845, 1855, and 1865, it appears to have been optional with the trial court whether an order for a special jury should go, but under statutory provisions existing from the revision of 1879, the party applying for such jury,
And so it has been ruled by this court when passing on section 2802, that if timely application be made under its provisions for a special jury, the trial court has no discretion to refuse such request. State v. Leabo, 89 Mo. 247.
Such was the adjudged state of the law when the revision of 1889 occurred, which incorporated therein all of the provisions of the act of April 11,1879, touching common juries, together with the amendment made by the act of March 17, 1885, relating to special juries, as well as section 2802, Revised Statutes, 1879, now section 6089, which also relates to special juries over the whole state as well as to juries of that sort of cities of the population of St. Louis. And the legislature having received the statutes of this state in 1889, and remcorporated a section which it had been adjudged left a circuit court no discretion when asked for a special jury, it must be presumed that the legislature was familiar with that ruling, and, by retaining that section as it stood in the revision of 1879, intended that it should continue to bear the meaning given to it by this court; and by changing the number of inhabitants in cities to which it applied to “over three hundred thousand inhabitants” it will be presumed also that the legislature intended to embrace the city of St. Louis within the terms of the amended section as much so as if that city had been directly named.
Special juries as contradistinguished from common juries have received legislative recognition and sanction in this state from an early period of its history. Thus in Revised Statutes, 1835, appears this section: “Sec. 14. Thecourt shall have power to order a special jury for the trial of any civil cause; in such case the sheriff shall summon eighteen jurors, according to the order of the
Special juries, it need scarcely be said, were familiar adjuncts and adjuvants in the administration of justice from the earliest period of the common law. This is but the assertion of what might almost be-termed a prehistoric legal truism, since their origin is too remote in the mists of authority to be now successfully traced. King v. Edmonds, 4 Barn. & Ald., loc. cit. 476.
Blackstone says: “Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders ; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such eases, upon motion in court and a rule granted thereupon, to attend theprothonotary or other proper officer with his freeholder’s book; and the officer is to take indifferently forty-eight of the principal freeholders in the presence of the attorneys on both sides; who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel.” 3 Com. *357.
In King v. Edmonds, supra (loc. cit. 486), Abbott, C. J., said: “It is the very object of a special jury.to obtain the return of persons of a somewhat higher station in society, than those who are ordinarily summoned to attend as jurymen at nisi prius. And a similar practice has long prevailed, even in the execu
In King v. Wooler, 1 Barn. & Ald. 193, when considering the topic under discussion, Lord Ellenbobough said: “The rule is directed against the mode of proceeding, and the conduct of the officer. As to the mode, it is said the juries are improperly and illegally struck; and as to the officer, he is charged with partiality. Can any man,-who has heard the detail of the affidavits, say that there is a colour for any part of the application? As to the mode, is it a mode that has ■obtained to-day for the first time? on the contrary, has it not obtained from all times to which the practice of the Court can be traced? The rule itself is not modern, nor has its form been varied: it requires ‘that the sheriff shall attend the coroner with the books or lists of persons qualified to serve on juries, and that he shall name thereout forty-eight good and sufficient men, of whom twelve shall be struck out on each side, and the remaining twenty-four returned to try the issue.’ * * * Then as to the juries being struck illegally; is there any illegality in the officer rejecting some and substituting others? that will depend upon the fifteenth section of the statute 3 g. 2 c. 25, which enacts, ‘That the Court may, on motion, appoint a jury to be struck for the trial of any issues in such manner as special
See, also, to the same effect, 2 Tidd’s Pr., 788; Black’s Law Dict., 1111; Thomp. & Mer. on Juries, secs. 12 and 13; 12 Am. and Eng. Encyclopedia of Law, 320.
Our legislature, by adopting as it did, the term “special jury” must be presumed to have done so, with a full understanding of the meaning, force and effect which that expression had acquired during its long sojourn at common law. And section 28 of our bill of rights declares that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” which means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existing at common law. Cooley, Const. Lim. [6 Ed.], 389, 504; Copp v. Henniker, 55 N. H. 179; Work v. State, 2 Ohio St. 299; Greene v. Briggs, 1 Curt. C. C. 311;
We are thus brought to consider rule 37, pleaded by respondent. We need not say much on this point,, .since it is-too plain for argument that that rule abrogates the statute, and while seemingly it endeavors to ■carry it into execution, really evades its provisions by ■causing such a course to be pursued, and such a method •of procedure taken, as leads to the same result as if the •applicant had applied in the first instance for a common .jury.
History is said to repeat itself, and this incident forcibly recalls something which affords a striking parallel to the operation of rule 37: The English judges had been accustomed, for a long period, to treat bequests to a “family”'as presumptively intended for the heir of such family, and in Wright v. Atkyns, 1 Turn. & Russ, 143, Lord Eldon, when speaking of the English rule of construction just noticed, whereby heir at law and “my family” were held convertible terms, says: “The court, in its anxiety ¡bo find out the meaning of the testator, has found out, that what he has said, has the same meaning as if he had said nothing at all."
Rule 37 operates in a similar way on the statute; it so construes it that, - were it repealed to-morrow, a party desmng a special jury could have one by accepting a common jury in lieu, thereof and this would be all he could get to-day. If this is the true meaning of sections 6089 and 29, 'supra, then the legislature has obviously expended in print a great deal of ineffectual verbiage.
There can be no question but that the term “special jury” under the authorities, bears with it as an inevitable concomitant, the .idea of selection, of choice, of the exercise of judgment and discretion, by the
But it is said in the return that section 27 of article 4 of the constitution of Missouri, authorized the judges of the St. Louis circuit court to make mies. It is true that under the provisions of that section the judges of said circuit court may sit in general term for the purpose of making rules of court. But that was simply intended to confer power on general term to secure a uniformity of rules in the several divisions of the circuit court. That this was what was designed by that section is apparent from two other considerations: First, that no such power was conferred on other courts to make rules; and, second, the power merely to make mies is an inherent power belonging to all courts of record, because they are courts of record. Works, Courts and their Jurisdiction, p. 177.
So that if the framers of our constitution intended pimply to confer authority on the judges of the circuit
But it is beyond the power of any court to make rules or take action which come into collision with either the organic or statutory law. Gormerly v. McGlynn, 84 N. Y. 284; Works, Courts and their Jurisdiction, p. 177, and other cases there cited.
On frequent occasions this court has thus ruled the same'point, to wit: In State ex rel. Partridge v. Lewis, 71 Mo. 170, the statute required all appeals taken from the St. Louis court of appeals to this court, to be taken within fifteen days after judgment rendered; but the statute allowed appeal bond to be filed “during the term” at which the judgment appealed from was rendered. Partridge, upon judgment being rendered against him in that court, took an appeal within the fifteen days, and during the term tendered his appeal bond, but the court of appeals refused to accept it because the appeal having been granted, that court had no further jurisdiction of the cause. This view was corrected by our writ of mandamus. So, also, in State v. Underwood, 75 Mo. 230, it was held that a rule of court which makes a change of venue case nontriable unless the transcript is filed at least fifteen days before the term, was null, because of being in conflict with section 1870, Revised Statutes, 1879. See, also, to the same effect: State ex rel. v. Gideon, 119 Mo. 94; Calhoun v. Crawford, 50 Mo. 458; Purcell v. Railroad, 50 Mo. 504; 4 Am. and Eng. Encyclopedia Law, 450, n. 7, and cases cited.
But one point remains to be considered, and that the method of relief resorted to by relators; as to which it is well settled law that such manner of redress as is prayed for by relators may be granted when the action of the lower court exhibits evidences of excess of
Eor the reasons aforesaid we award prohibition.
Dissenting Opinion
(dissenting). — My view of this case was given in an opinion filed in the first division. Notwithstanding what has since been written by my learned brother who has expressed the judgment of the court in banc, my conclusion remains, with due respect, as announced in the divisional proceedings. So my former opinion, together with the suggestions of the St. Louis circuit judges accompanying it, will be filed along with this for publication in the official report.
But some observations occur in the learned opinion in banc which lead me to add to my former comment on the case.
That ruling, it appears to me, does’not give sufficient force to the part of section 29 (R. S. 1889, p. 2169) which declares that the selection of a special jury by the commissioner shall be “according to the order of the court.” If the court sees fit to order a special jury to be selected by the commissioner by drawing names by lot from the list of qualified jurors, the effect
The body of the general common law was formally adopted as part of our jurisprudence in 1816;-but only so far as “not contrary to the laws of this territory.” 1 Terr. Laws, p. 436, eh. 154. Even at that day, jury trial was a cherished Missouri institution. The qualifications of jurors and mode of selection had been subjects of serious attention already.
The law of 1804 granted a trial by “jury of twelve good and lawful men” in criminal prosecutions, and “in all civil cases” if required. 1 Terr. Laws, p. 61, sec. 13. With slight modifications, the grant was repeated in other congressional and territorial acts applicable to the people of the territory now included in the state of Missouri. 1 Terr. Laws, p. 7, sec. 3; p. 89, sec. 1; p. 123, sec. 62; p. 307, sec. 4.
In 1808 an act of Louisiana territory provided an elaborate scheme for the selection of juries, one leading feature of which was that only payers of taxes (upon property rated at $100 or more) should be eligible as jurors. 1 Terr. Laws, p. 198, ch. 60. That property qualification was not only repealed in 1810 by the territorial legislature, but in a later act of congress (1812) for the government of Missouri territory that repeal-
“Sec. 11. And be it further enacted, That all free male white persons of the age of twenty-one years, who shall have resided one year in the said territory, and are not disqualified by any legal proceeding, shall be qualified to serve as grand or petit jurors in the courts of the said territory; and they shall, until the general assembly thereof shall otherwise direct, be selected in such manner as the said courts shall, respectively, prescribe, so as to be most conducive to an impartial trial, and least burthensome to the inhabitants of the said territory.” 1 Terr. Laws, p. 12, sec. 11.
So the law of Missouri territory stood when the first constitution of the new state proclaimed “that the right of trial by jury shall remain inviolate” (art. 13, sec. 8). The right thus secured was the right of jury trial already enjoyed by the people whose representatives made that declaration. And although the. common law may properly be .considered in determining the nature of some of the historic features of jury trial ' (not covered by local legislation before Missouri had a constitution of her own) the common law qualifications of jurors did not become part of the jury system protected by the constitution, for the very plain reason that the local law had already dealt with, and defined, those qualifications. And as the mode of selecting jurors was also a topic treated by the local law, the common law, as to the right to a special jury, was not adopted as part of the Missouri trial by jury.
In the early days of this court it was called upon to consider what jury trial was meant by the first constitution, in a case wherein a jury had been demanded to try a summary proceeding on motion, depending on disputed facts. It was insisted that a jury trial was
“This doctrine would be good in England, and in this state, if it were not for a provision in our constitution, which says, the trial by jury shall remain inviolate; the meaning of which is, that with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men; they must have a good fame, possess integrity and intelligence; they must not be aliens, vagrants, outlaws, nor under conviction of crimes. They must all be under oath when they try a fact or cause; they must all agree in their verdict; and the right to have disputed facts tried by such a jury, and in such a manner is to, remain inviolate.” Bank v. Anderson (1822) 1 Mo. 244.
That opinion was written by Judge McG-iek; to whom tradition imputes the authorship of the already mentioned act of 1816, introducing the common law as part of the law of the territory. Bay, Bench & Bar of Mo., p. 537.
The other judges of the court, at the time of the decision quoted, had both been members of the convention that ordained the first constitution of Missouri. It is likely, therefore, that those pioneers in our law knew, at least as well as any of their successors, the proper meaning of our earliest organic charter on the subject of jury trial; and, in announcing that not the English, but the Missouri, trial by jury was guarantied to our people, they probably made no mistake. Special juries had been known to our law, by name, before the adoption of the first constitution; but they were provided simply for particular cases to avoid a change of venue, and were to be drawn from a different county when an impartial jury could not be had in the county where the court was sitting. 1 Terr. Laws,
Bank v. Anderson was later approvingly cited in Vaughn v. Scade (1860) 30 Mo. 600. There is a remark in the latter case, however, that the common law trial by jury was the one adopted in the bill of rights, although the decision also approves Bank v. Anderson which held that it was not so adopted. Judge Scott probably intended to refer to the common law only for those essential features of jury trial that were not touched by Missouri law before the adoption of the first constitution, which was the substance of Judge McGtrk’s ruling in the Anderson case.
But it is not necessary to re-argue the present case at length. My dissent is respectfully recorded to the order for a prohibition.
DIVISION ONE.
OPINION.
This is an original application for a writ of prohibition to Judge Withrow, one of the judges of the circuit court in the city of St. Louis. The purpose is to prohibit him from enforcing a rule of court in regard to the selection and impanelment of special juries that may be ordered in that court. Both parties to a cause pending in the division (or special term) over which Judge Withrow presides unite in the application for a prohibitory writ.
The facts are admitted.
The object of the action before Judge Withrow is to condemn for railroad purposes a strip of land in St. Louis. The railway company is plaintiff, and the Knapp-Stout & Co. Company is defendant. The defendant applied in due time “for a special jury.” The application was granted, upon a deposit of the required
“And the court doth direct the jury commissioner of the city of St. Louis to draw and furnish to the sheriff of the city of St. Louis the names of 45 good and lawful men, and said sheriff is ordered to summon the persons so named to be and appear in room 3 of this court on Monday, October 14, 1895, at 10 o’clock a. m., then and there to serve as special jurors until discharged by the court.”
Neither the application for the special jury nor the order allowing it contains any specification of qualifications of the jury, by class, trade, occupation, residence, or otherwise.
The case came on for a hearing. The judge announced that the parties would be required to select a trial jury in accordance with rule 37 of the court, a copy of which the official reporter will please print along with this opinion.
The 45 jurors had been duly summoned in accordance with the order, but both parties moved to vacate it, and to “quash the panel,” because the order had required the jury commissioner to furnish the names of the jurors to the sheriff. On various grounds both parties indicated objections to the rule mentioned, and to its enforcement in the condemnation case. After overruling the objections, - the judge adjourned the trial to a future day in order to allow the parties time to have the correctness of his action reviewed in the present proceeding, which was promptly brought.
The defendant judge, in response to the rule to show cause, after admitting the facts set forth in the application for a prohibition, made further return as follows:
*529 “That said rale was unanimously adopted by the judges of said court, in general term, by authority of section 27, art. 6, of the constitution of Missouri, authorizing them to make' rales, and of section 29 of article 21, of the appendix to the Revised Statutes of 1889, directing that special juries shall be selected by the jury commissioner in the manner directed by the court, which provision of the statute is found on page 2160, Rev. St. 1889: that it was formulated and adopted by said judges as the result of their long experience in the practical operation of the special jury law applicable to the Eighth judicial circuit: that the same is a valid exercise of judicial power under the constitution and laws of this state, and is binding upon him, and he deems it to be his duty to enforce the same unless prohibited therefrom by this honorable court.”
In this state of the record, the case here has been argued by the plaintiffs, and submitted for decision, as upon an application to make the rule absolute.
The seven circuit judges of St. Louis, including Judge Withrow, have submitted printed suggestions indicating the grounds on which they saw proper to adopt rule 37. These suggestions will also be printed in reporting the case.
It is evident that either party to the case before Judge Withrow might except to the court’s action in regard to the jury, let that cause go to judgment, and
Prohibition, undoubtedly, is applicable, legitimately, as well to keep a court within the orbit of its power in dealing with some phase of a case, as to prevent its taking cognizance of an action or proceeding which the court has no power to entertain at all. State v. Ridgell (1831) 2 Bailey 560; Appo v. People (1860) 20 N. Y. 531. Especially may the writ be used for the former purpose by a court invested with “general superintending control” over the circuit courts, as is the supreme court, according to our fundamental law. Const. 1875, art. 6, sec. 3.
A question of jurisdiction in' respect of an incidental matter of procedure in a pending cause does not, ordinarily, form a basis for demanding, as matter of right, a writ of prohibition. If the court of which that writ is asked is of opinion that the remedy by appeal or writ of error is ample and adequate to correct an erroneous ruling on such a question, it may decline to interfere during the pendency of the original litigation. But if the mooted question involves an issue of jurisdiction in the trial court to. act in the particular matter complained of, the superintending court has discretionary power to award the writ of prohibition to keep the court of first instance within the confines of its authority, where the circumstances justify the'call for that remedy. In cases of the kind just described, the use of prohibition is truly discretionary,
The recent statute regulating proceedings in prohibition (Laws 1895, p. 95) does not change in this respect the preexisting law as to the proper occasions for the awarding of that writ. It merely undertakes to prescribe certain rules of procedure to obtain it.
We shall not, however, pause further to inquire into the applicability of the remedy in this instance inasmuch as we are of opinion that no prohibition should be granted on the merits. We are not entirely satisfied that it should be denied on the preliminary issue as to the appropriateness of the relief sought; so we have looked into the substance of the controversy.
The ordinary method of selecting jurors for service in St. Louis is pointed out by the law of 1879. Rev. St. 1889, p. 2160, art. 21. That statute has been since amended in some particulars which need not be specially noted, but one amendment is as follows:
“In every city in the state of Missouri having over one hundred thousand inhabitants, all courts of record in which juries are required shall have power, upon the application of either party, to order a special jury for the trial of any cause, if the application be made at least three days before the trial, and when ordered, the jury commissioner, as he maybe directed by the court, shall select and furnish to the proper officer of said courts the names of the persons to be summoned for*532 such special jury, and said officer shall summon them according to the order of the court, and make out and deliver to each party, or his attorney, a panel of the jury so summoned; but the costs of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the costs of the special jury shall be taxed as . other costs against the losing party. The provisions contained in sections 17, 18, 19, 20, 21, 23, 24 and 25’ of this act, in relation to the summoning and service of common jurors and to the duties and liabilities of persons in said sections respectively mentioned, and to the penalties in said sections respectively provided for in respect to common juries, shall, in like manner, be construed to apply also to the summoning and service of special juries, as by this section provided for.” Laws 1885, p. 74; R. S. 1889, p. 2169, sec. 29.
The general provisions on this topic in the last revision of the statutes (1889) are these:
“Sec. 6089. Special venire — how obtained and paid. — Either party to a cause pending in the circuit court, or court of common pleas or criminal court of any county or city, and triable by a jury, shall be entitled, as of course, to an order for special venire on motion made therefor, three days before that on which the case is set for trial; but the cost of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the case was one for the trial of which a special jury should have been ordered, in which case the costs of the special jury shall be taxed as other costs against the losing party. This section shall apply to cities having over three hundred thou*533 sand inhabitants, as fully as'to all other parts of the state.”
It will not be needful in this case to consider any clash there may be between the terms of this section and of the act of 1885 quoted.
Turning, now, to the law regulating the circuit court in the city of St. Louis, we note that the present court was organized under a special statute of 1865 (Laws 1865-66, pp. 70-76; E. S. 1889, p. 2145), which has since been occasionally amended.
But in the original act of 1865 occurs the following passage, which has never been altered or repealed:
“In addition to the ordinary power of making rules conferred by the general law, the court may make all rules which its peculiar organization may, in its judgment, require, different from the ordinary course of practice, and necessary to facilitate the transaction of business therein. But all rules for the government of the court at special term shall be the same before each of the judges at such term.” Laws 1865-66, p. 73, see. 14; E. S. 1889, p. 2147, sec. 11.
In State ex rel. v. Smith (1869) 44 Mo. 112, the supreme court, in a unanimous opinion, by Judge Wag-nek, held valid a rule of the St. Louis circuit court requiring bills of exceptions to be submitted there within five days, instead of within the term, as then allowed by the existing statute of the state.
The same view was taken of another rule of that court in regard to the mode and manner of applying for continuances (Frederick v. Rice (1870) 46 Mo. 24), and again in respect of the time for objecting to the form of questions in depositions (Fox v. Webster, 1870, 46 Mo. 181).
The same opinion of this power to make rules was also expressed by the court of appeals in State ex rel. v.
The supreme court decisions already cited were rendered and published, and hence well known to the public, long before the adoption of the constitution of 1875. In that instrument we find the following language in regard to the St. Louis circuit court:
“Sec. 27. Circuit Court of St. Louis County, etc. The circuit court of St. Louis county shall be composed of five judges, and such additional number as the general assembly may from time to time provide. Each of said judges shall sit separately for the trial of causes and the transaction of business in special term. The judges of said circuit court may sit in general term, for the purpose of making rules of court, and for the transaction of such other business as may be provided by law, at such time as they may determine, but shall have no power to review any order, decision or proceeding of the court in special term.”
This provision of the organic law is strongly confirmatory of the power already conceded to that circuit court by the statute and by the supreme court, in regard to declaring rules of practice.
There are many reasons for the grant and exercise-of such authority, growing out of the peculiar formation and duties of the court, and of the needs of the people whom it chiefly serves in administering the law of the state.
The statutes and decisions already cited will suggest many such reasons to the careful reader, and more could be pointed out by reference to other statutes, imposing peculiar powers and duties on that court.
But, whatever the reasons therefor, “the power exists,” as Judge Wa&nek said, in one of the cases
The power, however, relates only to modes of procedure, and is limited in its application to cases wherein a rule of court might fairly be held to have a legitimate bearing towards facilitating the business of the court. Even so broad a power to make rules of practice could not justly or reasonably be held applicable to deprive a suitor in that court of any right conferred by the substantive, positive law of the state.
The limitations of the power need not be further discussed at this time.
Rule 37 is not in conflict with any law touching the mode of impaneling the jury. It conforms to the statute (section 6081) allowing each party to the action to challenge peremptorily three jurors, and it recognizes fully the statutory right of challenges for cause (section 6083). In matters of mere detail, it prescribes the mode of proceeding to bring the final jury into the box, but in so doing it does not clash with any command of the written law, and we think that it can not justly be held to go beyond the proper range of the power of the court to regulate its procedure.
We therefore hold that it is valid.
Under a former law regulating juries in St. Louis, before the separation of the city and county, a method of procedure was pointed out for promptly drawing jurors, the principle of which could be readily applied to the selection of a special jury, designated by occupation or residence, though drawn from the wheel by lot in the usual way. Laws 1857, p. 487, sec. 3.
In the case in view in the trial court there was no order for that sort of a special jury. The call was merely a special one, for 45 jurors, in the particular case, and we are expected to decide whether the court had authority to make such an order.
Erom an early date, in Missouri, there has been general legislation authorizing the use of special juries.
As early as 1845 the following section appeared in the statutes, slightly changing the law of 1835 on the same topic (R. S. 1835 [2 Ed.], p. 343, sec. 14).
“ Sec. 14. All courts before whom juries are required, have the power to order a special jury of eighteen, for the trial of any civil cause, and, when ordered, the sheriff shall summon them according to the order of the court, and make out and deliver to each party, or his attorney, a panel of the jury so summoned.” R. S. 1845, p. 628, sec. 14. .
In the revision of 1855, the number of the special jury was increased to 24, and the section last quoted was substantially repeated, with that change. R. S. 1855, p. 912, see. 24.
By the revision of 1865, the opening lines of the section were amended so as to' read thus:
*537 “All courts of record in which juries are required shall have the power to order a special jury of twenty-four,” etc. The rest of the section was retained as last above written. R. S. 1865, p. 599, see. 23.
In the statutes of 1879 (section 2802) was a section in all material respects the same as section 6089 of the revision of 1889, already quoted. In these revisions no requirement is found as to the number of a special jury, further than may be inferred from general remarks committing the subject or number of jurors to the discretion of the court. R. S. 1889, secs. 6084, 6087.
One of the old local laws regulating the selection of juries in St. Louis and in a few other counties refers to special juries as proper in certain circumstances. Laws 1850-51, p. 228, sec. 7.
In several reported cases in the supreme court, questions have arisen involving the powers and duties of the trial courts in regard to special juries.
In Fine v. Schools (1860) 30 Mo. 166, the St. Louis circuit court ordered a special venire for a jury to be summoned outside the city limits, and the order was sustained. That ruling was • afterward approved in Rose v. St. Charles (1872) 49 Mo. 509.
In Union Sav. Ass’n v. Edwards (1871) 47 Mo. 448, the supreme court was called upon to consider an exception to a special jury of “bankers, merchants, and manufacturers” (as recited in the record of the cause, though the precise terms of the order do not appear in the opinion). After referring to the statutory power authorizing an order for a special jury, to be summoned “ according to the order of the court,” Judge Wagnek, on behalf of all the judges, declared: “The special panel may be ordered in the discretion of the court.”
It is noteworthy, in this connection, that the law
At no time in the history of the state have the trial courts in St. Louis been commanded, by any statute we have been able to discover, to direct the impanelÍment as special jurors of any particular class or kind of citizens from among those liable to general jury duty; nor have those courts been adjudged by any decision to be bound to order such a special jury. That subject has, so far, been left entirely to the judgment and discretion of the trial judge, as the cases above cited indicate.
The mode of selecting special juries, in vogue in England during the last century, is thus described by the great commentator on the English law:
“ Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholders’ book; and the officer is to take indifferently forty-eight of the principal freeholders in the presence of the attorneys on both sides; who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel.” 3 Bl. Com., *357.
It should be observed that such juries were ordered, under -the common law system, not only on account of the difficulty of the cause, but also, in some instances,
The English law of a more recent period prescribes, with considerable particularity, the qualifications for special jurors, and provides for their selection by lot, unless the court, as it may, shall direct a different course. Juries Act 1870 (33 & 34 Vict.) 77, secs. 6, 17.
In North Carolina, where such jurors may be selected by lot, that mode of choice has been commended as preferable to that of committing the matter to the choice of an executive officer of the court. State v. Brogden (1892) 111 N. C. 656, 16 S. E. Rep. 170; State v. Whitson (1892) 111 N. C. 695, 16 S. E. Rep. 332. In Wisconsin, the designation of a jury by the trial court itself was held a constitutional application of judicial power over the subject of juries, in Perry v. State (1859) 9 Wis. 19. While in our own state the naming of two jurors of such a panel by the judge himself was held a proper exercise of authority in Barr v. City of Kansas (1894) 121 Mo. 22, 25 S. W. Rep. 562. In the last cited case it was also ruled that, in Kansas City, “special juries should be drawn from the wheel the same as juries ordered to serve generally for the term or some other stated period of time.”
No law of this state has been pointed out which expressly or impliedly requires the court to order a special jury “of more than'ordinary intelligence,” or “of business men,” or of any special class, at the instance of any party who chooses to apply for a special venire. It can not be possible, nor does the language of any designated law suggest, that any party to the most trivial suit may, by paying in advance certain costs, secure an “extra good” jury. Section 6089 simply
Granted that the word “select ” is used to describe the action of the jury commissioner. It must also be remembered that the section from which we have just quoted is but part of a chapter or article regulating the selection of juries in large cities, including St. Louis. The rest of the law on that topic must be considered in attempting to reach a correct interpretation of the word “select” in the place where it is found in the act of 1885. All statutes on a given subject should be kept in view in interpreting any portion of them. The jury commissioner, in ascertaining the names of an ordinary jury, is not absolutely bound to place on any jury list every name drawn therefor from the wheel. If, for instance, it appears that he has drawn the names of persons whom the jury register shows to be dead, or to have removed permanently from the city, after their names were placed in the wheel, the commissioner may draw additional names to supply the deficiency. R. S. 1889, p. 2165, sec.16.
Furthermore, the language of the law generally, in regard to juries, plainly shows that the legislature has often used the word “select,” in connection with that subject, so as to include as well the idea of drawing persons by lot for a panel, as of the choosing of persons to be so drawn. The “selection of juries,” within the plain intent of our statute law, is a term frequently applied indifferently and broadly to all the steps pre
But, whatever doubt there be, springing from a strictly etymological consideration of the word “select,” we think, should vanish, upon weighing the force of the context with which the word appears in the law of 1885 before us. The special jury is to be “selected” by the commissioner “as he may be directed by the court.”
The court may order a jury to be “selected” by the jury commissioner, by process of drawing, just as it may order a jury to be summoned by the sheriff without the intervention of the commissioner at all, under section 16, page 2165, Revised Statutes 1889.
Cases may be supposed wherein the commissioner might have to exercise a limited power of selection' in drawing the special jury; for example, where the court’s order called for a jury of men of named occupations, or residing within (or without) certain limits of territory.
But the power of such selection is expressly confined within the limits marked by the order of the trial court, to which is thus committed the authority to determine what sort of special jury shall be “selected” and summoned. The commissioner is the hand to execute the order of the court. We consider that the statute does not design to vest in him a discretionary power of selecting special jurors, independent of the directions the court may give.
The case at the bar of Judge Withrow’s court is a condemnation proceeding, in which the valuation of real estate is, presumably, the only issue involved. Can it be justly said that a court abuses its discretion, in any view of the subject, by refusing a special jury of extraordinary qualifications to try a cause of that nature? Within the meaning of the present law, we
We consider that the hind of jury to be summoned in the condemnation case was a matter within the sound discretion of the trial judge, and we discover no abuse of his discretion in ordering a special jury of good and lawful men, and then in following the terms of rule 37 in the manner he saw fit to do.
In our opinion, the rule for a prohibition should be discharged, and a judgment for the defendant entered.
But we all agree to transfer the cause at once to court in banc, in order to expedite a final decision.
SUGGESTIONS OE THE SEVEN CIKCUIT JUDGES OE ST. LOUIS.
“Article 21 of the appendix to the Revised Statutes of 1889 provides a jury system for cities having over one hundred thousand inhabitants, which is different from the jury system for the rest of the state. In addition to the qualifications prescribed by section 6060, Revised Statutes 1889 jurors for service in the cities embraced within the provisions of said article 21 are, by the terms of section 9 of that article, required to possess other important qualifications.
“The jury commissioner, with the approval of the circuit court, appointed about fifty deputies to canvass the city to collect the names of all persons eligible to jury service. These deputies were chosen mainly from young members of the St. Louis bar who, on account of their intelligence and knowledge of the requirements, were considered best adapted to that work. After a careful and thorough canvass of the city, they returned into the jury commissioner’s office the names of all persons found possessing the qualifications prescribed by said section 9 of said article 21. With each name so returned was a memorandum of information, concerning the individual, such as would enable the jury commissioner to judge of his qualifications. This information was returned by the canvassers upon a prescribed form, and was verified or corrected by sending out different canvassers over the same route, and comparing their reports. When the work of the canvassers was ended, and the jury commissioner had reviewed the returns, it was found that there were 30,358 men in the city possessing the qualifications prescribed in said section 9, article 21, and liable to jury service. The names of these 30,358 men were enrolled in the books, and now compose the jury list of St. Louis. Estimating the population of St. Louis at five hundred
“It will thus be observed that the list of names selected for jury service does not embrace all the adult male inhabitants of St. Louis, nor all of those who would be qualified jurors under the general statute (section 6060, R. S. 1889), but only about one third of the latter, and that third selected with as much care as could be observed by an intelligent corps of canvassers and the long experience of the jury commissioner. It is, therefore, a fact, that the list from which all jurors, both regular and special, are to be drawn, is itself a carefully selected list.
“After the jury list had been made up as above stated, the judges of the circuit court gave very careful consideration to the question as to what directions should be given to the jury commissioner, as required by section 29 of said article 21 of the appendix, as to the manner in which special jurors should be selected. Theretofore no directions had been given to the jury commissioners on that subject, and the practice was for the jury commissioner, when an order for a special jury reached him, to select from the jury list whomsoever he saw fit for service in the particular ease. The judges of the circuit court became satisfied, after a long experience in the practical operation of that system, that it was not the one best calculated to insure the fair administration of justice. This criticism applies, not to the jury commissioner, but to the system. And the judges, in general term, concluded that a uniform system should be adopted, and that the duty of devising and adopting such a system was devolved upon them by the provisions of the above mentioned section 29, article 21, and that the method by which the system, when devised, should be adopted, was through the rule-
“Therefore, in the light of what is here stated, and in obedience to what they conceived to be their duty under the provisions of the law above cited, said judges, in general term, after a long discussion, unanimously adopted the rule concerning which complaint is made by the relators in this cause.
“James E. Withrow,
“Jacob Klein, ■
“Daniel Dillon,
“John M. Wood,
“L. B. Valliant,
“Thos. A. Eussell,
“Pembrook E. Flitcraet.”
See pp. 504,505, ante.
See. p. 542, post.