The statute of the Territory of Utah (Compiled Laws of 1888, §
3371, as amended in 1892) providing that "in all civil cases, a
verdict may be rendered on the concurrence therein of nine or more
members of the jury," if not invalid under the Seventh Amendment to
the Constitution, is so as violating the provision in the Act of
September 9, 1850, admitting Utah as a territory, that
"the Constitution and laws of the United States are hereby
extended over and declared to be in force in said Territory of Utah
so far as the same or any provisions thereof may be
applicable,"
and the Act of April 7, 1874, c. 80, "concerning the practice in
territorial courts, and appeals therefrom," which provided that �no
party
Page 166 U. S. 465
shall be deprived of the right of trial by jury in cases
cognizable at common law."
Litigants in common law actions in the courts of that territory,
while it remained a territory, had a right to trial by jury, which
involved unanimity in the verdict, and this right could not be
taken away by territorial legislation.
The power of a state to change the rule in respect of unanimity
of juries is not before the Court in this case.
On April 29, 1891, plaintiff in error commenced an action in the
District Court of Salt Lake County, Territory of Utah, to recover
of defendants the sum of $20,844.75 on a contract for furnishing
labels, cards, etc. After answer, the case came on for trial before
a jury on December 10, 1892, and resulted in a verdict in favor of
the defendants, signed by nine jurors, the others not concurring.
Judgment was rendered upon this verdict, which was sustained by the
supreme court of the territory. 10 Utah 147.
This action of the trial and supreme courts in sustaining a
verdict returned by only nine of the jurors was under the authority
of an act of the Legislature of Utah approved March 10, 1892 (Laws
Utah, 1892, p. 46), which provides as follows:
"SEC 1. That § 3371 of the Compiled Laws of 1888 of Utah is
hereby amended so as to read as follows:"
"SEC. 3371. In all civil cases, a verdict may be rendered on the
concurrence therein of nine or more members of the jury."
The bill of exceptions contains this recital in respect to an
instruction and the verdict:
"The court further charges you that the concurrence of nine or
more members of the jury is essential to your verdict, and that all
who agree to it should sign it"
"(To which last charge the plaintiff duly excepted.)"
"The jury, having retired and deliberated, returned a written
verdict into court on the 12th day of December, 1892, 'finding the
issues for the defendant,' signed by nine (9) of its members, the
others refusing to concur therein. Which verdict the court then and
there received, and caused to be entered upon the record."
"To which action of the court the plaintiff excepted. "
Page 166 U. S. 466
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the court.
As the amount in controversy is over $5,000, this Court, in any
view, has jurisdiction of the case, and may inquire into all
matters properly preserved in the record. The recital in the bill
of exceptions shows that proper exceptions were taken to the charge
of the court in respect to the number of jurors whose concurrence
was essential to the verdict, and also to its action in receiving
and entering of record such verdict.
The territorial statute was relied upon as authority for this
action. Its validity, therefore, must be determined. Whether the
Seventh Amendment to the Constitution of the United States, which
provides that "in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved," operates
ex proprio vigore to
invalidate this statute, may be a matter of dispute. In
Webster v.
Reid, 11 How. 437, an act of the Legislature of the
Territory of Iowa dispensing with a jury in a certain class of
common law actions was held void. While in the opinion, on page
52 U. S. 460,
the Seventh Amendment was quoted, it was also said,
"The organic law of the Territory of Iowa, by express provision
and by reference, extended the laws of the United States, including
the Ordinance of 1787, over the territory so far as they are
applicable,"
and the Ordinance of 1787, article 2, in terms, provided that
"the inhabitants of the said territory shall always be entitled to
the benefits of the writ of habeas corpus, and of the trial by
jury." So the invalidity may have been adjudged by reason of the
conflict with congressional legislation. In
Reynolds v. United
States, 98 U. S. 145,
98 U. S. 154,
it was said, in reference to a criminal case coming from the
Territory of Utah, that "by the Constitution of the United States
(Amendment VI), the accused was entitled to a trial by
Page 166 U. S. 467
an impartial jury." Both of these cases were quoted in
Callan v. Wilson, 127 U. S. 540, as
authorities to sustain the ruling that the provisions in the
Constitution of the United States relating to trial by jury are in
force in the District of Columbia. On the other hand, in
Mormon
Church v. United States, 136 U. S. 1,
136 U. S. 44, it
was said by Mr. Justice Bradley, speaking for the Court:
"Doubtless Congress, in legislating for the territories, would
be subject to those fundamental limitations in favor of personal
rights which are formulated in the Constitution and its amendment,
but these limitations would exist rather by inference and the
general spirit of the Constitution, from which Congress derives all
its powers, than by any express and direct application of its
provisions."
And in
McAllister v. United States, 141 U.
S. 174, it was held that the constitutional provision in
respect to the tenure of judicial offices did not apply to
territorial judges.
But if the Seventh Amendment does not operate, in and of itself,
to invalidate this territorial statute, then Congress has full
control over the territories irrespective of any express
constitutional limitations, and it has legislated in respect to
this matter. In the first place, in the act to establish a
territorial government for Utah, Act of September 9, 1850, c. 51, §
17, 9 Stat. 458, it enacted
"that the Constitution and laws of the United States are hereby
extended over and declared to be in force in said Territory of Utah
so far as the same, or any provision thereof, may be
applicable."
A subsequent statute has more specific reference to jury trials.
Act of April 7, 1874, c. 80, 18 Stat. 27. The first section of this
act, after confirming the statutes of the various territories so
far as they authorize a uniform course of proceeding in all cases
whether legal or equitable, closes with this proviso: "Provided
that no party has been or shall be deprived of the right of trial
by jury in cases cognizable at common law." This, of course,
implies not merely that the form of a jury trial be preserved, but
also all its substantial elements.
Walker v. Southern Pacific
Railroad, 165 U. S. 593.
Therefore either the Seventh Amendment to the Constitution or
these acts of Congress, or all together, secured to
Page 166 U. S. 468
every litigant in a common law action in the courts of the
Territory of Utah the right to a trial by jury, and nullified any
act of its legislature which attempted to take from him anything
which is of the substance of that right. Now unanimity was one of
the peculiar and essential features of trial by jury at the common
law. No authorities are needed to sustain this proposition.
Whatever may be true as to legislation which changes any mere
details of a jury trial, it is clear that a statute which destroys
this substantial and essential feature thereof is one abridging the
right. It follows, therefore, that the court erred in receiving a
verdict returned by only nine jurors, the others not
concurring.
In order to guard against any misapprehension, it may be proper
to say that the power of a state to change the rule in respect to
unanimity of juries is not before us for consideration.
Walker
v. Sauvinet, 92 U. S. 90;
Hurtado v. California, 110 U. S. 516.
The judgment will be
Reversed, and as the questions involved in the case are not
of a federal nature, and diverse citizenship is not alleged, the
case must be remanded to the supreme court of the state for further
proceedings.
