15 Mo. App. 125 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This was an action for damages for negligence. There was a trial before a special jury summoned under section 2802 of the Revised Statutes, and the defendant had a ver diet.
The only errors assigned relate to the overruling of the plaintiff’s challenge to the array from which the jury was selected. According to the recitals of the record, on
“ 1. That the law under which-the jury had been summoned was unconstitutional.
“ 2. That the said law could not be executed, as it did not prescribe how the special jury should be summoned, and that there was no warrant of law for summoning a jury in the way in which this jury had been summoned.
“ 3. That the selecting and summoning of said jury by the sheriff was illegal; and further, that it was the duty of the court to designate a sufficient number of persons to be summoned, and not leave it to the discretion of the sheriff.
“ 4. That in summoning this said jury, the law, as prescribed, had not been complied with.
Among the grounds on which the plaintiff asked for a new trial were : —
“1. The court erred in overruling legal objections made by the plaintiff to the array of the jury, before said jury was sworn.
“2. The jury was improperly and illegally chosen and summoned.”
I. In support of this motion for new trial a long affidavit of Isaac M. Mason, sheriff of the city-of St. Louis, is filed, setting forth that neither he nor any of his deputies had taken the oath of impartiality in summoning jurors required by section 2781 of the Revised Statutes; and setting forth in detail the manner in which special jurors, when ordered, are selected and summoned by him, and also the manner in which this particular jury was selected and summoned by him. This affidavit was not made by the sheriff until after the judgment had been rendered and the motion for new trial made, and the record does not disclose that the facts stated therein were brought to the attention of the court by the challenge to the array, or in any other manner, before the jurors were sworn, or that they were not known to the challenging party at the time when he made his challenge to the array. It, therefore, follows, that for the purposes, of what we have to decide, it might as well have been left out of the record ; for no rule of practice is, better settled than that a party can not make his challenge to an array, or to particular jurors, for the first time in a motion for new trial. Thomp. & Mer. on Jur., sect. 275, subsect. 2 ; 295, 296. If the affidavit had been presented at the time when the array was challenged, and in support of the challenge, it would have been our duty to consider the legal effect of the facts therein stated. But the rule is well settled that, after ver.dict, informalities in selecting the
II. The first of these grounds is that the law under which the jury had been summoned was unconstitutional. The statute referred to is in the following language : —
“ Either party to a cause pending in the circuit court, or court of common pleas, or criminal court, of any county and ti’iable 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
It is the duty of a party impugning the constitutionality of an act of the legislature to put his finger upon some provision of the constitution which it violates. We have looked curiously through the plaintiff’s brief, to see what provision of our constitution this statute is supposed to impugn. It is supposed, by the appellant’s counsel, to violate that provision of section 28 of our bill of rights which declares that “ the right of trial by jury, as heretofore enjoined, shall remain inviolate.” This, it is argued, guarantees the right to a common jury, except in extraordinary cases, where a special jury was allowed. It seems to be true, as suggested by the learned counsel for the appellant, that originally in the King’s Bench, special juries were only allowed in cases of unusual importance. But the later practice of all the courts of Westminster Hall seems to have been to allow them upon a simple application in any civil case, as of course, or at least, in the discretion of the court. Hall v. Perott, Bald. 123, and authorities cited. The peculiar feature of the statute objected to is that it gives either party the absolute right to a special venire upon moving therefor within a prescribed time, and paying the costs of the same, irrespective of the result of the trial. We can not see any constitutional objection to this statute, unless it be true that the constitution in some way guarantees to a party in a civil suit the right of trial before an ignorant and incompetent jury, such as.our common juries in St. Louis often are. A statute limiting jury duty to a particular class of persons, other than freeholders in the country or citizens in a city, who are eligible for this duty at common law, might be unconstitutional. It has been so held with regard to statutes limiting jury duty to white persons. Strauder v. The State, 100 U. S. 303. But the statute under consideration contains no such limitation. It does
It is also suggested that the feature of the above statute, which provides that the costs of the special jury shall be ¡laid by the party applying for it, is in conflict with section 10 of our bill of rights, which provides that “ right aud justice shall be administered without sale.” We do not see the force of this suggestion. At common law, as we understand it, every suitor purchased his writ, and paid the costs of every ministerial act done at his request, as the cause proceeded. And if he were successful in the suit, he recovered these costs from the opposite party. We are not aware that it was ever supposed that this practice amounted to a sale of justice. The sale which magna charla, and our bill of rights following its language, denounced, was the taking of bribes and the extorting of illegal fees; not the payment of lawful compensation, for acts done at the request of a party, by the ministerial officers of a court in the progress of a litigation. But it is seen by the reading of the statute under consideration, that the obligation of the party demanding
III. The next ground of challenge was, “that the said law could not be executed, as it did not prescribe how the special jury should be summoned, and that there was no warrant of law for summoning a jury in the way in which this jury had been summoned.” It is perceived that this paragraph really embodies two grounds. We do not think that the former of them is-well taken. As to this ground, if the statute does not prescribe the manner in which it is to be executed, it may be executed according to the established practice of summoning additional panels when the regular panel has been exhausted, as provided in section 2788. Or, if it be possible that this section does not afford a proper guide, then, clearly the established practice of courts of the common law as to the mode of selecting and summoning special juries may be resorted to. A statute which simply gives or regulates a remedial right which existed at common law, can not be held to be void because it does not prescribe in detail the inode of procedure by which it is to'be executed; for the common law furnishes a sufficient guide as to that.
The second branch of this ground of challenge really belongs to the third ground of challenge, which we shall now consider.
IV. The third ground of challenge was that the selecting and summoning of said jury was illegal; and further,
The practice of selecting a special jury at common law was, it must be conceded, entirely different from the practice which was adopted in the case at bar. The manner of selecting or “ striking ” such a jury at common law, is thus .stated in an old book of practice, which appears to have been a book of authority in its time : “ In cases where it is conceived an indifferent jury will not be returned between the parties by the sheriff of the county where the venue lies, the court, upon motion, will order the sheriff to attend the secondary of the office, with his books of the freeholders of the county where he is sheriff, and the secondary, in the presence of the attorneys of both sides, to strike a jury ; but there must be probable matter shown to the court why an indifferent jury may not be had, else the court will make no such rule. Upon a motion and an affidavit made in court, that the cause to be tried at the bar is a cause of very great consequence, the court will, if they see cause, make a rule for the secondary to name forty-eight freeholders, and each party to strike out twelve, by one at a time, the plaintiff or his' attorney to begin first, and the remaining twenty-four shall be the jury to be returned for the trial of the cause.” 2 Lilly’s Register, 155. Substantially the same method is detailed in 2 Tidd Pr. 787. See, also, Trials per Pais (Duncombe on Juries,
In 1825 the subject was regulated in England by an elaborate statute known as the jury act (6 Geo. IV., ch. 50, sects. 30-36), the leading features of which, so far as it relates to special juries, were that a special jury list was to be made out, composed of every man in the county “ who should be described as an esquire or person of higher degree, or as a banker or merchant; ” that all the names on the list, written on cards, were to be put into a box and shaken up, out of which forty-eight names were to be drawn, and these should be summoned as the panel from which the jury was to be selected.
The special jury law relating to the city of St. Louis contains no provision for the selection of special juries. The section of the Revised Statutes (sect. 2802), under which the special jury in the case under consideration was summoned, in terms applies to cities having more than one hundred thousand inhabitants ; and it was the manifest intention of the legislature that it should apply to St. Louis, any provisions of the special jury law applicable to this city to the contrary notwithstanding. But, as was said in the case of The State v. Burns (54 Mo. 274, 279, 280), it do.es not appear that the jury commissioner of the city of
The question, therefore, is, what are the requirements of the general law in regard to the selection of special juries? The statute itself is silent upon the question. It simply provides that “ either party to a cause pending in the circuit court, the court of common pleas, or criminal court of any county, and triable by 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.” Rev. Stats., sect. 2802. The decisions of our supreme court do not throw any special light upon this inquiry. The special venire to which, in several cases, it was held the plaintiff was entitled, appears to have been an order in the nature of a writ of venire facias, directing the sheriff to summon jurors from the body of the county outside of the limits of the city, the action being an action against the city, and the inhabitants of the city being incompetent. Fine v. St. Louis Public Schools, 30 Mo. 166 ; Rose v. City of St. Charles, 49 Mo. 509 ; Fulweiler v. City of St. Louis, 61 Mo. 479. The special jury which was summoned in the case of Union Savings Association v. Edwards (47 Mo. 445), was summoned under the provisions of a statute which had long existed in this state, and which appears to have been superseded by the statute now under consideration. That statute read as follows : “All courts of record in which juries are required shall have the power to order a special j<ury of twenty-four 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.” 1 Wag. Stats., p. 800, sects. 23 ; Gen. Stats.
“ It would seem that the duties of the sheriff, in returning a special jury in St. Louis, are practically the same as were those of the sheriff in returning such a jury at common law. The jury commissioner of St. Louis, having no facilities for drawing such a jury, and his duties relating exclusively to the drawing of ‘ ordinary jurors,’ it necessarily devolves upon the sheriff, in the fulfilment of the order of the court for such a jury, to select and summon such jury
The special jury in this case was clearly not selected according to the “ course, holdings, and usages of the common law.” This is shown by the manner in which special juries were selected at common law, as stated in the argument of the learned counsel for the respondent, which is substantially the same as'that already set out. The vice of the mode of selection adopted in this case is, that it. commits the whole matter to the unrestrained discretion of the sheriff and his deputies, with the single exception that it requires them to make their selection from “lawful men,” and from a particular class of lawful men, namely, “ merchants and business men.” Under such a system of selection, the chief safeguard of the special jury of the common law is broken down. A partial sheriff, or a corrupt deputy, might pack a jury in the interests of a party, a result against which his right of peremptory challenge and of challenge for cause might prove ineffectual. The leading principle in the selection of a special jury at common law was, that the selection was made from a general list which the sheriff brought into court. It was made in the presence of the court, by the parties themselves, presumably under the direction of the court; but under our present statute, as executed in this case, the sheriff may summon such merchants and business men as he pleases, and excuse such as he pleases, so that he have twenty-four before-the court on the day set for the trial. The present statute does not even require, as did the former statute, that he shall “ make out and deliver to each party, or his attorney, a panel of the jury so summoned.” The party confronts, for the first time when his case is called for trial, an array of twenty-four men, presumably merchants and business men, of whom he may know nothing except what he may learn from an examination on the voir dire. This, it is seen, is
But yet, feeling as we do, the full force of the foregoing suggestions, we have been unable to bring our minds to the conclusion that the legislature, in passing the statute in question, intended to revive in this state the special or struck jury of the common law. So far as we know, that mode of selecting special juries has never been practised in this state, and the profession are strangers to it. No reported decision in this state that we have been able to find, refers in terms to such a jury, although, for aught we can see, our previous law relating to special juries was, equally with the present law, susceptible of the construction that the special jury of the common law was intended. We feel all the difficulties of the question ; but at the same time we feel that if we were to hold that the present statute intends the special jury of the common law, we should introduce a novelty into the practice which was not in the contemplation of the legislature.
Y. We have not made the foregoing observations because they were necessary to the decision of the case ; we have made them because we thought that it might be useful to direct public attention to the state of the law upon this question. In any view which may be taken of the question, it does not follow that the judgment in this case ought to be reversed. It is the settled doctrine of the supreme court of this state that statutes relating to the impannelling of juries
It follows that the judgment of the circuit court must be affirmed.