Omaha daily bee., 1911-01-11

As an instance Of the working Of the
initiative under the amendments OF the
oregon constitution, attention is called to
the amendment Of article vii adopted at
the election held November s. 1910
The amendment provides, in effect, that
the judicial power OF the state shall be
vested in one supreme court and in sucn
other courts as may, from time to time,
be created by law. II further provides
that the judges shall be elected by the
legal voters for a term Of six years; that
the courts shall remain as at present con
stituted until otherwise provided by law;
and that in all civil cases thfee-fourths
of the jury may render a verdict.
The main Objectionable features Of this
amendment are in its section iii, which is
as follows:
Section g. In actions at law. where the
Tvalue in controversy shall exceed $50, the
right Of trial by jury shall be preserved
and no fact tried by jury shall be other
wise re-eNamined in any court of this state,
unless the court can affirmauvely say
there is no evidence to support the YER
dict. Until otherwise provided by law,
upon appeal of any case to the supreme
court, either party may have attached to
the bill of exceptions the whole testimony,
the instructions Of the court to the jury
and any other matter materials to the de-
cision Of the appeal II the supreme court
shall be OF opinion after consideration of
all the matters thus submitted that the
judgment of the court appealed from was
such as should have been rendered in the
case, such judgment shall be affirmed
Notwithstanding any error committed dur
judgment appealed from should be
changed, and the supreme court shall be
OF opinion that 1t can determine what
judgment should have been entered in the
court below II shall direct such Judgment
to be entered in the same manner and
with like effect as DEGREES are now en-
tered in equity cases on appeal to the SUI
preme court. Provided, that nothing in
this section shall be construed to author
ze the supreme court TO find the de-
PENDANT in a criminal case guilty of an
offcnse for which a greater penalty s
provided than that Of which the accused
was convicted in the lower court
1T will be seen that there is apparently
a conflict between the provisions OF the
first sentence Of section III, relating to the
effect of verdict by jury in an action
at law, and the power and duty Of the
supreme court on an appeal when there
is attached to the bill OF exceptions by
either appellant or respondent. the whole
testimony, the instructions Of the court to
the jury, and any other matter material
to the decision of the appeal
Under the familiar rule of construction
that where, in a statute there are appar-
emily conflicting provisions they must be
TtGOutlltu IL l. - poSHlblt 70 10 So btC-
ton Iii should be construed to mean that
the verdict of a jury cannot be re-exam-
ined by any court inferior to the supreme
court, and only by the latter when the
whole record is before it. Thus. circuit
court cannot grant a new trial IL there
be a verdict OF jury, with a scintilla of
evidence to support It, even when such
verdict is excessive or outrageous or given
nr prOha bly
on account Of newly discovered evidence
once verdict, always a verdict, until it
reaches the supreme court. The suffciency
of the verdict will apply to appeals to the
circuit court where there is a Jury trial
In the county court or in a court of a
justice Of the peace. 1t would seem that
practically there can be no appeal to the
circuit court, when there has been jury
trial in an inferior court. The testimony
is not transmitted in such appeals to the
circuit court. But the provisions of the
first sentence as to the conclusions of a
verdict by a jury do not apply to a Grim
inal case for the last sentence Of section
iii is:
Provided, that nothing i'm this section
shall be construed to authorize the SUI
preme court to find the defendant in a
criminal case guilty of an offense Tor
which a greater penalty is provided than
that of which the accused was convicted
in the lower court"
THE appeal provided for in section iii
applies to both civil and criminal cases,
The words are: Upon appeal OF any case
to the supreme court the provisions ap-
ply, And what are the provisions upon
an appeal? Either the appellant or the
respondent may land certainly the APP
pelant always wilD have attached to the
instructions of the court to the jury, and
any other matter material to the decision
Of the appeal Does this include the YER
dict? 1t is immaterial. The verdict OF
the jury, in the court below, Is not neces-
sarily even a guide TO the supreme court.
1t must be guided by the whole testimony,
the instI uctions of the court to the jury
and also any other matter that either the
appellant or respondent may deem ma
terial to the decision of the appeal II
may enter a judgment after a considera-
ton of all the matters thus submitted
II the supreme court decides for the re-
spondent, 1t may do so, Notwithstanding
any error committed during the trial by
the court below or by the jury. II must
consider whether the judgment was such
as should have been rendered in the court
below after a review of the whole testi-
mony, and also after considering other
matters in the record. There may be SINH |
lar action by the supreme court, IN favor
of the appellant, II Il shall be Of the opin-
ion that It can determine what judgment
should have been entered in the court be-
low What then. is the value Of the YER
dict? BY this method OF appeal is not
trial by jury practically abolished in Ore
gon? And yet trial by jury has been in
existence in English-spealking countries
from the time OF the Anglo-Saxon rule in
England until the present day!
mo provision is made in this amend
ment for sending the case back TO the
lower court for retrial Its apparent OBJ
ject is to authorize the supreme court to
make a fins determination in every law
case appealed, and also in criminal cases,
and TO direct what judgment shall be en-
tered IN the court below. But how can
the supreme court make such determin
alton when the court below has excluded
testimony which should have been ad
mtted? Or made other rulings materially
prejudicial to the rights Of one OF the