Grim v. Norris

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

This case was tried by a referee, and upon his report a judgment was entered for the plaintiff. The order of reference was made without the consent and against the objection of the defendant. The action is an ordinary suit at law for the recovery of a debt, and in such cases the parties are entitled to a trial by jury, if they desire it. The ground of the reference was, that a trial of the case would require the examination of a long account; and the Court acted no doubt upon the supposition that the statute afforded the requisite authority for the order. But the Constitution provides, that “ the right of trial by jury shall be secured to all, and remain inviolate forever; ” and if such a construction of the statute could be maintained, we do not see why this right might not be entirely swept away by legislative enactment. The framers of the Constitution regarded the right of the citizen in this respect as too sacred and valuable to be intrusted to the guardianship of the Legislature, and the provision referred to was intended as a restriction upon legislative authority. We have repeatedly held, however, that this provision of the Constitution did not extend to equity causes, but was limited in its operation to those cases in which the right of trial by jury previously existed. An intentional violation of the Constitution on the part of the Legislature is not to be presumed, and by construing the statute as solely applicable to proceedings in equity, we avoid even a seeming conflict between the two instruments. We have no doubt that this construction is in accordance with the inten[143]tion of the Legislature ; but whether it is or not, it is certain that no other effect can be given to the statute.

The point that the defendant subsequently waived his objection to the reference, is not well taken.

Judgment reversed and cause remanded for a new trial.