Hale v. Marshall , 52 Okla. 688 ( 1915 )

The only proposition raised by the petition for rehearing in this case that we deem necessary to notice is the contention of plaintiff in error that section 5019, Rev. Laws 1910, iscontra and subversive of section 19, art. 2 of the Constitution of Oklahoma. Section 5019, supra, provides that:

"When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in either of the following cases: Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account; in which case the referee may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or where the taking of an account shall be necessary for the information of the court before judgment," etc.

And section 19, art. 2, of the Constitution provides that: "The right of trial by jury shall be and remain inviolate." But section 5019, Rev. Laws 1910, appears as section 4182, St. 1893; section 4479, Wilson's Rev. Ann. St. 1903, and section 5811, Comp. Laws 1909, and consequently was in force at the time of the adoption of the Constitution; and this court, in harmony with all other courts that we have examined, holds that:

"* * * The constitutional provision declaring that the right of trial by jury shall remain inviolate has reference to the right to jury trial as it existed in the territory, at the time when the Constitution was adopted." (State ex rel. v. Cobb,24 Okla. 662, 104 P. 361, 24 L. R. A. [N. S.] 639.)

The court, in the above opinion, further says:

"This construction is sustained by a great many authorities, among which we note the following: Callan v. Wilson,127 U.S. 540, 8 Sup. Ct. 1301, 32 L.Ed. 223; Work v. State of Ohio,2 Ohio St. 297, 59 Am. Dec. 671; State ex rel. Jackson v. Kennteet al., 24 Mont. 45, 60 P. 589; Kuhl et al. v. Pierce County,44 Neb. 584, 62 N.W. 1066; State of Nevada v. McClear, 11 Nev. 39;Lavey et al. v. Doig, 25 Fla. 611, 6 So. 259;Ross v. Irving, 14 Ill. 171 ; Wheeler v. Caldwell, 68 Kan. 776, 75 P. 1031; Vaughn v.Scade et al., 30 Mo. 600.

"Section 23, art. 3, of the Constitution of Montana declares that the right of trial by jury shall be secured to all, and remain inviolate. Considering this, the Supreme Court said, in the case of State ex rel. Jackson v. Kennie et al., supra: '* * * This instrument must be construed in view of the conditions existing at the time of its adoption, and that the right of trial by jury, guaranteed under this broad declaration, is the right as it then existed, and not one created or extended, except by express terms, by the instrument itself. This rule extends to both civil and criminal trials, and is applied by the courts to the Constitutions of all our states. Proffatt on Jury Trial, sec. 87; Cooley, Const. Lim. 74, 389; State v.Glenn, 54 Md. 572; Flint River Steamboat Co. v. Foster,5 Ga. 194, 48 Am. Dec. 248; Ross v. Irving, 14 Ill. 171; Anderson v.Caldwell, 91 Ind. 454, 46 Am. Rep. 613; Allen v. Anderson,57 Ind. 388; State v. McClear, 11 Nev. 39; Frazee v. Beattie,26 S.C. 348, 2 S.E. 125; Stilwell v. Kelloug, 14 Wis. 461. The rule is elementary, and so well settled that further comment is unnecessary.' "

Baker v. Newton, 27 Okla. 436, 112 P. 1034, is to the same effect. Also State Bar Commission ex rel. v. Sullivan,35 Okla. 745, 131 P. 703, L. R. A. 1915D, 1218.

The contention of plaintiff in error is therefore not well taken, and the petition for rehearing should be denied.

By the Court: It is so ordered.