Russell v. Elliott

Chief Justice Murray delivered the opinion of the Court. The plaintiffs sued out an injunction, under the act of 1850, which was dissolved by the District Court, and the question of damages referred. Upon the coming in of the report, the Court refused to enter judgment thereon, the statute of 1850 having been repealed, and the question of the constitutionality of such reference being raised. There is no doubt as to the mode pursued ; and unless this Court interfered by mandamus, the defendants are without a remedy in the premises.

The Act of 1851 saves the rights of parties in actions and proceedings taken before the repeal of the former act: so that the only question of any importance is, whether the reference in this case was an infringement of the plaintiff’s constitutional right of trial by jury. The 120th section of the Practice Act of 1850, provides, that “The Court shall require a written undertaking upon the part of the plaintiff, with sufficient security, to the effect that the plaintiff will pay to the party enjoined such damages, not to exceed an amount specified, as he may sustain by reason of the injunction, if the Court shall finally decide the plaintiff was not entitled thereto. The damages may be ascertained by a reference, or otherwise, as the Court may direct.” It is contended that the words, “the damages maybe ascertained by a reference, or otherwise, as the Court may direct;” mean the amount of damages or sum to be specified in the undertaking required by the Court. This position is fortified by the author of Monell’s Practice. Without inquiring what may have been the circumstances in New York which induced this peculiar construction, I am of opinion that our legislature had a different intention in passing this section; and that the obvious meaning was to refer these questions of damages to referees, instead of encumbering the records and occupying the time of the Court with their investigation.

The 3d section of the Declaration of Rights, in the Constitution of California, provides, that “the right of trial by jury shall [247]be secured to all, and remain inviolate forever; but a jury trial may be waived in civil cases in the manner to be prescribed by law.” This section differs but little from similar provisions in the Constitutions of other States; and the decisions which have been made by other Courts are not inapplicable. Our Constitution expressly recognizes the power to waive a jury trial. To compel an acceptance of a trial by jury in all cases, might, in many instances, work as great a hardship as a denial of the right of jury trial; and if a rigid adherence to the provision were enforced, parties might be deprived of the right of refering their controversies to arbitration, or of seeking any forum for the adjudication of their difficulties, except through the medium of twelve men. Here the law has prescribed the manner in which a jury trial shall be waived.....It is declared by the statute giving the remedy by injunction, that the damages sustained by the wrongful suing out of the writ, and availing one’s self of the stringent and extraordinary process of the Court, shall be assessed by a referee. When the plaintiff filed his undertaking, he must be considered as having consented to this summary proceeding, in exchange for the process of the Court. The proceedings upon the undertaking must be regulated by the statute authorizing the injunction; and the plaintiff having pursued his remedy with full knowledge of this fact, is deemed to have waived his right to a jury trial, and consented to this mode of proceeding.