Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-05-28
A Labor Of Love "Kn0eked into n Cock.
cd Hat" by the Supreme Court
Jurors Must Still Rely
Upon the st ate.
The Case OF Samuel a NeeIey VS.. the
State Decided for the Plaintiff
A Decision TO Challenge
PubliC Attention.
The Right OF Trial by Jury Shall Never
be Encountered with Conditions
1t Must be Preserved
InViOlate, Etc.

Chief-Justice Nicholson yesterday de-
livered the following opinion in the case
Of Samuel NJ. Nicely U5. the State:
Samuel NJ. Neely was one of the regu-
lar jurors, appointed by the county
court OF M&ury county, for the May
term, 1875, OF the circuit court of that
county. After serving three days the
jurors were informed by the circuit Judge
that the compensation as jurors could
only be provided for by taxing the same
as costs against the losing parties, in
pursuance Of chapter of the act OF
1875. WhereupOn Neely declined to
serve longer, and for so refusing the
circuit judge imposed upon him fine OF
ten dollars for contempt. From this
judgment he has appealed to this court.
1t is apparent that the object of this
appeal is to have the judgment of this
court as TO the cOnstitutiOnality OF the
act passed February "A, 1875, entitled
ian act to tax the losing party with the
jury fees in all cases in civil suits, and to
repeal sections 1926 aud 4037 of the Code.
The facts, as set out in the bill of excep-
tiOns, show that the question, whether
the juror was III contempt Or not, prop
eTly involve an examination as to the
constitutiOnality Of this act.
This act provides, first, That hereafter
the fees allowed by law to juries in all
| civil cases shall be taxed and collected
as other costs, provided the county shall
continue to pay in the same manner
now provided by law said fees on all
suits instituted in tOrmd pduperiS.
SecOnd-That sections 4036 and 4O37
of the Code be and the same are hereby
repealed.
Third-That the judge presiding at
the trial in said cases shall apportion the
fees OF jurors in proportion TO the time
consumed in the trial of the same, pro-
vided that the county shall not be taxed
with any part thereof
The first objection to this statute is,
that under its practical operation jurors
will be REQUIRED to serve without COM
! pensatiOn in ali cases in which defend
ants who are losing parties are insolvent.
1t is insisted that this violates the
| twenty-first section of article | Of the
| constitution, which ordains that "no
mans particular services shall be de-
manded, or property taken, or applied
to public use, without the consent of his
representatives, or without just compen-
satiOn being made therefor"
1t Is observed that the statute does not
require the services of jurors without
compensation, but it only places them
on the same footing az to compensation,
on which all others stand, whose COM
pensstiOn is taxed as part Of the costs of
the case. Every witness or officer Of the
! court must lOOk to the costs, when COL
lected from the losing party, for compen-
satiOn for his services. II juror can
refuse to serve as such, unless his fees are
paid in advance, or secured to his salts
NuTffr
quiTed to give their time for the public
good, and so, also, may the sheriff and
clerk.
1t may be remarked that in the origin
Of trial by q jury, the jurors were the wit
nesses as well as the jurors to try the case,
and it is stated in the "Mirror of Justice"
chapter IL, section 4, that in the time of
Henry l it was ordained that tiurOrs
sworn upon assiZes should not have fees"
1t cannot, therefore, be assumed, that
compensation for service of a Juror is q
common law right. On the contrary, it |
would seem to have been g service re-
quired to be performed without COM
pensation, and in all probability, upon
the idea that impartiality was thereby |
more certainly secured. Whether a re-
turn to this common law practice might |
not give to Jury trials more of independ- |
GuCG, lidlAl1 anu lll6lllR0uC6, Is u |
question which might we'll engage the |
attention of the law-making depart |
ment.
1t cannot be cOutrOverted, that it is |
one OF the implied and necessary condi- |
tions upon which men form govern |
ments, that sacrifices must sometimes |
be made by individuals for the common |
good, for which no compensation can be |
claimed. Such sacrifices Of time of per- |
sonal service, or Of property, are COM |
pensated for in the protection which the |
government furnishes for their rights Of |
person or OF property.
Courts are an essential part of the ma |
chinery Of government, for the preser- |
walton and protection OF their rights. |
Juries are q necessary portion OF the |
courts; and whenever il becomes proper |
to require the seTvicesOf jurors in carry. |
ing on the courts, this service may be |
required, and, if need be, even without |
compensation; but this must be required |
in pursuance OF laws enacted for that |
purpose by the legislature.
But in the present case the legislature |
has not thought proper TO require the |
services Of jurors without compensation |
they have only required parties liti- |
CANT, in whose immediate service the |
jurors may be engaged, to make COM |
pensstiOn by way Of costs. If it should |
happen that no compensation is received |
in cases where the losing party is unable |
to pay, it is no greater sacrifice than |
many others are required to make for the |
common good.
Second-The next objection is that the !
statute violates article l, section 8 of the |
constitution, which Ordains, "That the
right Of trial by jury shall remain invio- |
I,N. oil .olst
shall ever be required as q qualification
for jurOrs.n
The settled meaning of this provision
of the constitution is, that the right of
trial 10y jury shall remain inviOlate az it
existed at common law at the time Of
the formation OF the constitutions
Hum. 43; Cold. 3S2.
This right is guaranteed to every citi-
zen, and any statute which fails to secure
the full enjoyment OF it is necessarily
void
1t is not necessary for us to recuT to
the origin of their institution, or 20 trace
its history, in order 70 appreciate its in
estimable value in a free government,
and to understand why 1t has been de-
clared to be 1.-THE glory of England"
This is sufficiently indicated in the fact
that it has been sOlemnly ordained, in
our bill of rights, that trial by jury shall
remain inviOlate.
But what is tine right Of trial by jury?
1t is q right guaranteed to every citizen
to have the facts involved in any liti-
CATION which he mag have, tried and
determined by "twelye good and lawful
men By good and lawful men, as
defined in our statutes, is meant men
esteemed in the community for
their integrity, fair character and sound
judgment''-section 1890. They must
be "freeholders or hOusebolders, and
twenty-one years of sge''-sectiOn 1902
And "ne person can act as juror in
any case in which he is interested, or
where either Of the parties is connected
with him by affinity or cOnsanguinity
in the sixth degree''-sectiOn 4003. Per-
SONS convicted of certain infamous Of
fenses, persons OF unsOund mind, persons
not in the full possession OF the senses Of
hearing and seeing, and hsbitual drunk
ards, are incompetent to act as jurors"-
section 1904.
This reference to the qualifications re-
| quired by the statutes for good and law