Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-05-28

February, 1875, already quoted, violate
the right Of trial by jury? The answe
| is, that the provision, which taXes tht
| fees Of jurors as costs on the losing party
! is in conflict with the requirement tina
| jurors shall be free from bias, and have
no interest in the cause being tried.
1t is said by Mr.. Comfy, p. Sl9, tha
| many Of the incidents Of q common
law trial by jury, are essential elements
| of the right. An absence Of any inter,
| est in the event o. the litigation, and al
Indifference or impartiality between the
| litigants, are common law require
| ments, and are essential elements tC
constitute a good and lawful jury. The
| litigants have such Jury guaranteed to
| them by the constitution, for the trial OF
| their causes 1T common law. We may
illustrate the question by supposing 8
| severely litigated suit between two par
ties-one of whom is solvent and the
! other insOlvent. The jury may be en-
gagged for days or weeks in its trial.
Under the act of February "a, 1875, if
they decide the issue for the insolvent
man, their compensation of one dollar
and fifty cents per day is taxed against
the solvent man, and is secured. II they
find for the solvent party their compen-
sstiOn is taxed against an insOlvent
man, and is lost. If the plaintiff is in
solvent and sues in tOrn1n pa1lpeTis, and
loses his case, the jurors are paid by the
county. Such cases are liable to occur
constantly, in practice. Can it he said
that in such cases the right of trial by
jury has remained inviOlate? And yet
such is the condition in which the
rights Of parties are placed by the stat
ute.
1t is not necessary to assume that ju-
TOrs so situated would ordinarily be in
t1uenced in their Yerdicts by the cOnsid-
Grafton Of saving their compensation.
The question is, whether jurors sub
jected by the law to such temptation, are
the good and lawful men whom parties
have right to have on the trial OF their
causes. Until recently, witnesses were
incompetent to testify if interested to
the amount of a ptppercorn in the re-
suit OF the suit; however honest or in-
telig0nt, the stern rule of the common
law interpOsed to prevent them from te3-
tifyiDg. We have constant occasion to
lament the demoralizing influence of
the abolition OF this rule By the COM
mon law like inconsiderable interest
disqualified a juror from sitting, and
that rule has been uniformly adhered to,
and is, in effect, perpetuated by the con-
stitutiOnal guaranty against any viola
ton Of the right OF trial by jury. 1t is
true that the interest OF the juror, unde-
the act of February "a, 1875, has no ex-
istence at the date of his appointment,
but Is created by the act whenever he
enters upon the trial OF the cause. The
act itself places the juror in a position
that he may have an interest in the re-
suit. The men best qualified to act as
jurors will avoid the service, because the
act places them in a position to have
their conduct attributed to selfish con-
sderatiOns in making up their verdicts.
1t will incline suitOrs to dispense with
jury trial because Of their apprehension
that jurors will not be entirely free from
bliss in their deliberations. In this way
the act will operate as an attack upon
the integrity Of jury trials, and the less
dangerous because indirect, and based
upon a policy Of economy, rendered
plausible and popular by the existing
embarrassment in our finances.
1t is as essential to the due sdminis-
tratiOn of Justice that jurors should be
aboYe eli temptation OF suspicion, as
that the judges should. In the beautiful
language of Blackstone, "the admins.
tratiOn Of justice should not only be
chaste, but not suspected. How long
could any court retain the confidence of
the country, if it was dependent on fees
to be taxed to the losing party, for its
compensation? The only safe rule by
which either the jury box or the bench
can retain the confidence Of the country,
and discharge its duties to the satistac.
ton Of the public, is by placing both
above temptation. This is Just what
the common law intended, and what
our bill of rights guarantees
Again, the bill of rights guarantees to
every citizen the right Of trial by jury
without violation, and by the seventh
amendment of the United States consti-
tuition, it is declared that the right of
trial by jury shall be preserved. This
manifestly means that the right shall
never be encountered with conditions,
which, in their practical operation, may
impair the free and full enjoyment of
the right. The act of February "a, 1875,
leaves to the citizen no discretion, he
must enjoy the right, if at all, upon the
condition OF being made responsible Tor
the compensation of the jury which in
practice may, and probably would, en-
tirely defeat the enjoyment of the right.
We fully appreciate the patriotic mo-
tives which influenced the legislature in
the passage of the act under considera-
ton. 1t was mauifestIy designed as a
measure OF economy, and We do not un-
dertake to question its wisdom in that
view. The responsibility is devOlved
upon us, however, to protect the cOndi-
ton from infrsctiOn, and, as far as in
our power, to preserve the right of trial
by jury from violation or demOral-
iZatiOn. While we are reluctant at all
times to differ with coordinate branch
Of the government, as to its cOnstitu-
tional powers, yet we cannot discharge
our duties without doing so unhesitating-
ly, when such differences exist. We are,
therefore, constrained to hold the act of
February "A, 1875, unconstitutional and
void.
1t is observed that the second section
of the act under consideration repeals
sections 1926 and 4037 of the Code. These
sections provide for the making out, by
the clerk, of lists of the jurors, to be de-
livered to the county court clerk, on
which warrants are issued to the several
jurors, which warrants are made payable
out Of the county treasury.
1t is we'll settled that part of a statute
may be unconstitutional and void, while
the residue may be valid. But where
part only of statute is void, and the
residue so dependent upon and connected
with the valid part, that it cannot be
presumed the Legislature would have
passed one without the other, then both
are void. Ledgw. Court Law, 4l3;
Commonwealth US. Hitchings, 5 Gray,
4S2; State as. Wheeler, 25 Com, $50.
1t is entirely mani est that the repeal
OF sections 1895 and 4037 was a mere
consequence of the passage of the first
section. Indeed, the first section would
have operated by implication as repeal
OF those two sections. 1t follows that
the entire act OF February %, 1875, is
null and void, as if it had never passed,
and that the sections 4036 and 4037, aud
any Others repealed by the act of Feb
rUary q, 1875, are still in full force.
1t follows that the action Of the circuit
judge is reversed, and the defendant,
Neely, discharged OF the contempt.
NICHOLSON.
Judge M'Farland dissented, on the
grounds that the law had not been viO-
lated.
An accommodating Leak In Gbe Cin-
cInnaII WRGeFWOrks.
CINCINNATI, May 27.-In the water
works investigation this evening, the
foot xUaS aliaitaI thof 10 Thrio{ MNar