
    THE PEOPLE, ex rel. METROPOLITAN BOARD OF HEALTH, against LANE.
    
      Supreme Court, First District ; at Chambers,
    May, 1869.
    Justices’ Courts.—Trial by Jury.
    A justice holding a district court ill the city of New York has no power to impannel a jury of more than six.
    The provision of the constitution securing the trial by jury “ in all cases in which it has heretofore been used,” does not prevent the legislature from authorizing trials to be had otherwise than by a common law jury of twelve, in civil courts of local jurisdiction, in the case of actions in which the amount claimed does not exceed the limit of such jurisdiction, as it was established before the constitution took effect.
    The statute authorizing a trial by a jury of six in a justice's court, although the amount exceeds that limit, is not unconstitutional, if it also allows the defendant the right to remove the cause to a Court of record, where he eould have a trial by a jury of twelve.
    Mandamus.
    These proceedings were taken in the name of the People on the relation of the Metropolitan Board of Health against Thaddeus H. Lane, justice of the district court of the sixth judicial district of the city of New York.
    The relators commenced two actions in the sixth district court, of which the respondent is the justice; one against James W. Ranney, to recover a penalty of $250 for different violations of the provisions of the statute in relation to returns of "births and deaths, and the other against John B. Kerr for a penalty of $100 for the noncompliance with an order of the relators in relation to tenement houses.
    The defendants in such suits demanded a jury trial, and insisted that they could not "be compelled to go to trial with any jury "but a jury of twelve men, and the justice decided that they were entitled to a jury of twelve, but that, as the statute gave him no power to summon such jury, that he could not proceed in any way.
    The relators applied to the supreme court for a mandamus requiring the justice to proceed and try the actions.
    
      John L. Cadwalader, for the relators.
    I. The act providing for six jurymen in the district or justices’ courts is constitutional. We insist that this provision of the constitution left jury trial exactly where it was prior to 1846 (Rathbun v. Rathbun, 3 How. Pr., 139 ; Lee v. Tillotson, 24 Wend., 337; Sands r. Kimbark, 27 N. Y., 147 ; Sands v. Tillinghast, 24 How. Pr., 435 ; Matter of Mechanics’ Insurance Co., 5 Abb. Pr., 444; Matter of Empire City Bank, 18 N. Y., 199 ; Hard v. Nearing, 44 Barb., 472 ; Murphy v. People, 2 Cow., 815; People v. Gloodwin, 5 Wend., 251; Plato v. People, 3 Park. Cr., 586 ; Duffy v. People, 6 Hill, 75 ; People v. Kennedy, 2 Park. Cr., 321; People v. Fisher, 2 Id., 402). (2.) And the constitution only guaranteed to each particular class of cases that peculiar form of jury known to it, and in common use in 1846. (Cruger v. Hudson River R. R. Co., 12 N. Y. [2 Hern.], 190 ; Clark v. City of Utica, 18 Barb., 451; Matter of Fourth Avenue, 11 Abb. Pr., 191 ; Clark v. Miller, 42 Barb., 255 ; Duffy v. People, 6 Hill, 75 ; People v. Groodwin, 5 Wend., 251; People v. Kennedy, 2 Park. Cr., 321).
    II. What kind of jury, then, existed in these courts prior to 1846? (1.) Trial, in inferior courts, with a jury of six, existed in colonial times (11 Geo. II, Dec. 16, 1737 ; 12 Geo. III, March 12, 1772). (2.) This became a portion of our common law {Const., 1777, § 35). (3.) Then followed the acts of April 17, 1778, giving a jury of six in actions to recover £10; act of 1782 limited jurisdiction to £25 ; act of 1818 enlarged the jurisdiction to £50; act of April 12, 1824, preserved a jury of six; act of May 4, 1840, increased jurisdiction in actions to recover a penalty of §100 ; act of 1848, ch. 153, § 4, established six judicial districts, and put the jurisdiction at §100, and, by §§ 10 and 12, substituted them for the former courts.
    III. As to Kerr’s case, therefore, a jurisdiction in courts of a similar character, existed in 1846, to recover penalties of §100, with a jury of six. These courts, although changed in name, are not new courts, but the same courts remodeled and existing under another name, and the same courts in substance possessed such jurisdicdiction {Laws of 1820, ch. 1; Laws of 1852).
    IV. As to Ranney’s case, a penalty of $250 is demanded. (1.) Even if new classes belonging to the same general classes should be added to the jurisdiction of an inferior court, that would not be unconstitutional (Sands v. Kimbark, 27 N. Y., 147; Hard v. Nearing, 44 Barb., 472 ; Matter of Smith, 10 Wend., 449). But here, in the same nature of actions, a larger jurisdiction only is given. (2.) But as a party can, by filing his bond, remove the cause into the common pleas, it is submitted that he can at his choice obtain a common law jury, and his rights are all protected. The provision for the bond is no greater hardship than security for costs from non-residents, and only a matter of remedy, such as allowing an attachment in the first instance, and is similar to the criminal trials at special sessions (Jones v. Robbins, 8 Gray, 341; Hapgood v. Doherty, Id., 373).
    
      Justice Lane, the respondent in person,
    presented the following argument, being substantially the opinion delivered by him upon the causes in question.
    The first question to be determined is the power of the court to impannel more than the six jurymen prescribed by section 34 of the act referred to.
    The district courts of this city are creatures of statute, anil have no powers beyond the acts creating them ; they are of limited jurisdiction, and their modes of procedure must be governed by the language of the act, or the clear intention of the legislature. Section 34, above referred to, is clear and explicit in its provisions: it provides “ that the clerk must publicly .draw twelve persons from the undrawn jury box,” &c.,—and from these twelve persons, when duly summoned, and when they appear, “ six of the persons attending shall be drawn to try the cause.” There is no provision whatever for any more, either in this or any other section of the act, and indeed other sections, especially Nos. 39 and 40, clearly indicate that it was the express meaning of the legislature that this number (six), and this only, should constitute the panel. This is the natural and obvious meaning, and any other interpretation would be subtle and forced. “ Where words are so plain and explicit, courts have no right to add to, or take from them, in order to change their meaning.” And if there is any defect in the law, courts have no power to correct such supposed errors, omissions or defects {Story Const., § 392 ; Newell v. People, 7 N. Y. [3 Seld.], 9, 97; Purdy v. People, 4 Hill, 31 ; McCluskey v. Cromwell, 11 N. Y. [1 Kern.], 593).
    If this construction is correct, it follows that a jury, when demanded under section 34, must consist of six persons, and six only, and that a district court "has no power to add to, or take away from, that number, although a party demanding the same, can, of course, waive his right to the whole number of six, or proceed to trial before the court, unless he demands a jury.
    The vital question, however, in this matter, is, What is ■ meant by a jury, according to its legal definition and signification \
    
    Article 7 of the amendments to the constitution of the United States of 1789 is as follows:
    “ In suits at common law, where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved.”
    This provision of the constitution of the United States would seem to be paramount; but if it were, I do not see how it conflicts with any part or parts of either the present or any other constitution of this State, at least so far as regards a final statute.
    
      The present constitution of New York (1846) Article I., section 2, is in these words:
    “ The trial by jury in all cases in which it has herein-before been used shall remain inviolate forever. But a jury trial may be waived by the parties in civil cases in the manner prescribed by law.”
    11 The trial by j ury, ’ ’ therefore, would not only be that which “has hereinbefore been used,” but that which has been legally used previous to this time (1846).
    Article 7, section 3, of the State constitution of 1822 provides that “ the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; and no new court shall be instituted but such as shall proceed according to the course of the common law, except such courts of equity as the legislature is herein authorized to establish.”
    The first constitution of this State, adopted in convention of the representatives of the State of New York, at Kingston, 20th April, 1777, section 41, is identical in meaning, if not in language, with that of 1822.
    “And this constitution does further ordain, determine and declare, in the name and by the authority of the good people of this State, that trial by jury in which it hath hereinbefore been used in the colony of New York shall be established......And further, that the legislature of this Slate shall at no time hereafter create any new court or courts but such as shall proceed according to the course of the common law.”
    
    It is clear, therefore (even without reference to the constitution of the United States), that from the year 1777 to the present time, within the limits of this State, the trial by jury was and is guaranteed, and that if any court or courts have been created with powers transcending the provisions of the common law, such powers are unconstitutional and void.
    The right of trial by jury is guaranteed by “Magna charta” (section 29), in these words: ‘‘ATullus liber homo capiatur, vel imprisonetur aut disseisietur aut utlagelur aut exuleiur, aut aliquo modo destruatur nec 
      
      super cum ibimus nec super cum mittimus nisi per legale judicum parium suorum ml per legem terree.” The great charter of Henry III. (A. D. 1225), confirmed "by Edward I. (A. D. 1297), is almost identical in language.
    That the trial "by jury, however, was known long previous to the signature at Runymede, and is even older than the common law itself, is conceded by the best and most learned authorities. Antiquarians have given different sources of the origin of jury trials. It has been identified with the compurgators of the Saxons,—the inquisitors or assessors who investigated and certified to the ¡Norman lord the extent of his feudal rights,—and with the judices of the Romans, and it is conceded that all such tribunals consisted of twelve men. But, from whatever source it originated, the number twelve seems to have been adopted by all the northern nations of Europe in settling, not only internal, but external controversies. Thus by the treaties of Ethelred with the Welsh, certain disputes were adjudicated by a committee of twelve—six of each nation.
    It would be needless to multiply examples, of which there are many.
    This number, twelve men (“ boni homines”), appears to have been engrafted upon, and become a part of, all courts or “hundreds,” or other bodies constituted to determine controversies known to the common law at the earliest periods.
    The laws of Alfred upon this subject may be briefly described thus:
    “If any one accuses a King’s thane, let him do it with twelve King’s thanes. If any one accuse a thane of a less degree than a King’s thane, let him purge himself with eleven of his equals, and one King’s thane.”
    This is alluded to by Hume, in his History of Eng - land, ch. 2, who speaks of “twelve freeholders bound to administer impartial justice.”
    Blackstohe, in his very interesting chapter concerning trials by jury (vol. 3, ch. 23), traces trials by jury to a very ancient date, and always speaks of twelve men being necessary to constitute a jury, and that this was and has always been considered a maxim of the common law. In his own words, the trial by jury “is the most transcendent privilege' which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty, or his person but by the unanimous consent of twelve of his neighbors and equals” (3 Blades., 379). And Reeve, in speaking of the common law as known before, and adopted by magna charta, speaks of the trial by jury—“ the trial by twelve men sworn to speak the truth” (1 Reeve's Hist. Eng. Law, 87).
    That the trial by jury, as known to the common law, is engrafted upon, and is part of, the Great Charters, I think it is unnecessary even to discuss. In the language of Lord Coke, “ they were for the most part but declarations of the common laws of England, to the observation and keeping whereof the king was sworn {Preface to 2 Lists., 2, 3 ; vide also Sir Matthew Hale’s Hist, of the Common Law, 128).
    That a trial by jury means at common law a trial by twelve men (“boni homines”), I can entertain no doubt. That it has been known as such for centuries (although at times grossly violated), would seem apparent. And if the legislature of this State has, created any court contrary to the provisions of the common law, the constitution of the United States, or constitution of 1777, confirmed by those of 1822 and 1846,—enabling such courts to deprive a citizen of his rights of person or of property without a trial by jury,—such proviso must be void. It is no answer to this proposition that the various acts creating justices of the peace, assistant justices, and district courts, has been acquiesced in, and received as “ the law of the land ” for so many years.
    If it can be declared that a jury is to consist of only six persons, by another proviso it can be enacted that four.or two or one shall constitute a panel. It appears to me this is not what is meant by a trial by jury, or a proceeding at common law.
    As I have had before occasion to remark in cases that have been brought before the court, I should be very loth, and, indeed, refuse, to declare any act of the legislature of this State unconstitutional, until passed upon by a higher tribunal, but in this instance I think I was fully sustained by such tribunals and authorities.
    This action is upon a statute highly penal in its nature, and must, of course, receive a strict construction, and, as such, I believe any person prosecuted under any of its provisions entitled to a jury as known to the common law.
    Chief-Justice Thurman (4 Ohio St., 177) says “that the term jury, without addition or prefix, imports a body of twelve men in a court of justice, is as well settled as any legal proposition can be ” (See, also, 2 Wis., 22; 3 Id., 219 ; 6 Metc., 231).
    Judge Johhsoh, in rendering the decision of the court of appeals in the case of Cruger v. Hudson River R. R. Co. (12 N. Y. [2 Kern.], 190, 193), says, “ That term (a jury), when spoken of in connection with a trial by jury in section 10 of the same article (the constitution of 1846) imports a jury of twelve men, whose verdict must be unanimous. Such must be its acceptation to every one acquainted with the common law, and aware of the high estimation in which that institution so constituted has for so long a period been held.”
    In the cases of Wynehamer v. People, and People v. Toynbee, which two cases were decided together (13 N. T. [3 Kern.], 378), the question arose as to the .constitutionality of the act “for the prevention of intemperance, pauperism and crime” (Laws of 1855, 340), one of the grounds for the decision of the court of appeals declaring said act unconstitutional, was; that the defendant was deprived of a trial by jury as guaranteed by the constitution. Johhsoh, J., in that case, referring to a jury of six men, used this language : “That is not what the constitution means by a jury trial. That must be, within the terms of the constitution, a jury of twelve men (13 N. Y. [3 Kern.] 427). And again, Mitchell, J., in the same case, page 458, referring to the same clause of the constitution, says, “this means the common law jury of twelve men” {Id., 458).
    In (Gleason v. Keteltas (17 N. Y., 491), Judge Seldeh, speaking of a waiver of trial Tby jury, holds “that the right to a trial by jury in a proper case is absolute, and any decision of the court overruling or denying such right would be plainly erroneous.”
    Upon the motion before the court the learned counsel for the defendant cited portion of a decision of the general term of the supreme court of the fifth district (not as yet reported), wherein it is alleged that Judge Mulliw, after commenting on the case last cited (Gleason v. Keteltas, 17 N. Y., 491), remarks : “ There is no doubt as to the power of the legislature to enlarge the jurisdiction of justices of the peace to any amount it may deem proper. The courts will have full power to try, hear and determine all such cases, unless either of said parties shall demand a trial by jury / that done, it may not be in the power of the court to proceed, as it cannot imyannel a jury of twelve men.”
    
    I . was, therefore, for the reasons before set forth, and from the authorities I have cited, forced to the conclusion that this court has no power to impannel as a jury to try a cause more than six men ; that the common law, the constitution of the United States, and each and every of the constitutions of the State of New York, contemplated that in all penal actions a jury should consist of twelve men ; and that therefore, and until directed by a higher tribunal, the court was powerless to proceed.
    
      John M. Scribner, Jr.,
    
    on the same side, in addition to the authorities cited by Justice Lane, presented the following:—
    I. The district courts are not “justices’ courts,” nor “courts of justices of the peace.” This has been ex-decided. Justices of the are officers described in the constitution and the statutes by that name, and provision is made for their election in all the counties of the State except in New York (Davis v. Hudson, 5 Abb. Pr., 61; Mills v. Winslow, 2 E. D. Smith, 18; Jackson v. Whedon, 1 Id., 141). The provisions of the Revised Statutes (tit. 4, ch. 2, part 3), “of courts held by justices of the peace,” &c. (2 Rev. Stat., 225), do not relate to the district courts, otherwise justices’ courts, of this city. The laws governing these. courts previous to 1857, will be found in 2 Rev. Laws of 1813 (Jackson v. Wheedon, 1 E. D. Smith, supra). By Revised Laws of 1813 (2 Rev. Laws of 1813, 370), these courts were organized by the name of assistant justices, one appointed for each ward, and thus acquired the name of ward courts. They had jurisdiction by that act in all actions for debt not exceeding twenty-five dollars, and all actions for penalties imposed by any statute not exceeding twenty-five dollars. There was at this time in the city of Hew York a .court known as the “justices’ court,” having marine jurisdiction, the name of which, by ch. 71, Laws of 1819, was changed to the marine court. By ch. 182, Laws of 1822, 177, a jury in the marine court was required to be composed of twelve men. Laws of 1820, ch. 1, extended the jurisdiction of the assistant justices in the city of Hew York .to suits where the amount claimed was fifty dollars and under, and they continued to exist with the same name until 1848,.without increase of jurisdiction. Thus, at the time of the adoption of the constitution of this State, in 1846, all suitors in the city of Hew York, where the amount claimed by or against them exceeded fifty dollars, were entitled by law to a trial before a jury of twelve men. Chapter 317, Laws of 1840, which increased the jurisdiction of justices of the peace to one hundred dollars, and will be relied on by plaintiff’s counsel, does not apply to these courts. (See cases above cited.) And if not otherwise inapplicable to "these courts, it was void under the constitution of 1822. The constitution of 1822 (art. 4, § 14) expressly recognized a distinction between these courts and those of justices of the peace, by.providing: Sec. 14. “The special justices and the assistant justices, and their clerks, in the city of New York, shall be appointed by the common council of the said city, and shall hold their oflices for the same time that the justices of the peace in other counties of this State hold their offices, and shall be removable in like manner.” Courts of justices of the peace have no clerk, and no seal. In 1848 {Laws of 1848, 249), the city was divided into six judicial districts, and courts established therein were called “justices’ courts of the city of New York.” This act was passed March 30, 1848. April 12, 1848, the name was again changed {Laws of 1848, ch. 276), to the “assistant justices’ courts of the city of New York,” and in 1857 the present courts were organized under the name of the “ district courts of the city of New York.” They are essentially new courts, with new. powers and extended jurisdiction. They try causes and entertain jurisdiction over cases in amount where, at the time of the adoption of the constitution of 1846, a right of trial by jury of twelve men was secured, because they could'be tried only in a court of record or in the marine court, where the jury was invariably composed of twelve men. They are courts organized under the provisions of the constitution of 1846 (art. 6, § 14), which authorizes the legislature to establish inferior local courts of civil and criminal jurisdiction in cities. It is respectfully submitted that the provision of the act of 1857, organizing these courts (§ 34), which limits the litigants to a jury of twelve men, is unconstitutional.
    II. A jury, under the constitution, means a jury of twelve men, and a trial by jury is secured as well in civil cases as in criminal, unless waived. The term jury, as-used in the constitutions of the several States, means a common law jury of twelve men (May v. Milwaukie, &c. R. R. Co., 3 Wis., 219; Shaver v. Starrett, 4 Ohio N. S., 494; Norval v. Rice, 2 Wis., 22; Vaugh v. Scade, 30 Miss. [9 Jones], 600; Isom v. Mississippi, &c. R. R..Co., 36 Miss. [7 George], 300). Any law which destroys or materially impairs the right of trial by jury according to the course of the common law, is contrary to the bill of rights, and unconstitutional (Plimpton v. Somerset, 33 Vt. [4 Shaw], 283). Issues of fact in civil and criminal cases are triable by jury of twelve men, and the right to such trial is secured by the constitution of this State (People v. Kennedy, 2 Park. Cr., cited 317, 321; Cruger v. Hudson River R. R. Co., 12 N. Y. [2 Kern.], 198; Warren v. People, 3 Park. Cr., 544). All legislative invasions of this right are unconstitutional and void (People v. Carroll, 3 Park. Cr., 22). An action to recover damages, or a statute penally for creating or continuing a nuisance, must be tried by a jury, unless a jury trial is waived. Actions of such a nature were triable by jury prior to the constitution of 1846, and the right was preserved by that'instrument.' The power to enforce the penalty is to be exercised according to the course of the common law, by which a jury trial was of course a right secured (Fire Department v. Harrison, 2 Hill, 455-464). The objection has been made that if twelve men are requisite to form a jury in a district court, then all the judgments heretofore rendered upon verdicts of juries composed of a lesser number have been illegal. The answer to this is simple. The constitution expressly provides that a jury trial may be waived, and when the parties consent or do not object in a civil case, any number less than twelve may constitute a jury. “The right of trial by jury in a proper case is absolute, and any decision of the court, overruling or denying such right, would be plainly erroneous. But it is a right which can be waived, and if a party who is entitled to it enters voluntarily upon a trial by the court without objection, he would ordinarily, no doubt, be understood as consenting to that form of trial” (Greason v. Keteltas, 17 N. Y., 498). The section of the constitution of 1846 relating to right of trial by jury is in these words : “ Article I., Section 2. The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever. But a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” The debates in the convention which framed the constitution show that such members of that convention as Charles O’Conor, Rugóles, Jordan, and others, were of opinion that trial by jury “means really and practically the right of trial by twelve,” and that the usage which had obtained with legislative sanction in justices’ courts to impannel a lesser number, was unconstitutional. Mr. O’Conor declared a jury of six to be “ an illegitimate jury.” Mr. Basoom pronounced it “ an infraction of the constitution.” Mr. Stow was of opinion “ that the legislature, by reducing (the jury) in any case to six, clearly violated the constitution.” Mr. Jordan said, “the legislature had evidently infringed on the constitution by reducing the number of jurors from twelve, unless they had left the jurisdiction of justices at twenty-five dollars, where it was at the adoption of the constitution of 1777; because trial by jury was a definite thing, and meant nothing more or less than twelve men.” Mr. Stetson said, “if you could draw all causes of action down to a jury of six men, then you can take a jury of six up to any court of record whatever, engraft a jury of six on the highest court of the State.” Mr. O’Conor said “he had never heard so many legal gentlemen speak so much alike on any question heretofore.” The whole debate shows that the large majority of the eminent lawyers who were members of that convention, understood the term jury to mean a body of twelve men impanneled to try a cause, and that the constitution which they made guaranteed to every suitor such a jury. The convention was almost unanimous in declaring that all acts previously passed by the legislature in prescribing a lesser number than twelve to make a jury were infractions of the previous constitutions of the State (Debates in Convention of 1846, Atlas ed., 544 and onwards). This debate, taken in connection with the fact that the district courts of this city (then called assistant justices’), had, as above clearly shown, at the time of the adoption of the constitution of 1846, jurisdiction only to the extent of fifty dollars, clearly establishes that in this case (where the amount involved is $100), Justice Lane’s decision was correct, and that he had no jurisdiction’ to proceed with the trial of the action. Judge Lane’s decision is "based upon the authority of the highest court in the State. In Cruger v. Hudson River R. R. Co. (12 K. Y. [2 Kern.], 198), the court of appeals decided that the term jury, as used in section 2, article I. of the constitution of 1846, “imports a "jury of twelve men, whose verdict is to be unanimous.” In Wynhamer v. People (13 N. Y. [3 Kern.], 427), judge Johnson, speaking of the act of 1854, prescribing a jury of six in trials for violation of the liquor law of that year, says, “ This is not what, the constitution means by a jury trial. That must be, within the terms of the constitution, a jury of twelve men.” A legal jury, according to the common law, consists of twelve persons, and that is what our constitution means by a jury (Cancemi v. People, 18 N. Y., 135.)
   Sutherland, J.

There are two actions brought by the relators pending in the district court of the sixth judicial district of this city, of which Thaddeus H. Lane is the justice.

One of the actions is against James W. Ranney, physician, to recover a penalty of $250, or several penalties in the aggregate amounting to $250, for alleged violations of certain provisions of the act constituting the Board of Health, in relation to returns of deaths, &c.

The other action is against Thomas P. Kerr, to recover a penalty of $100, or several penalties in the aggregate amounting to $100, for alleged violations of a certain order or ordinance of the Board of Health relating to tenement houses.

In the action against Ranney he appeared on the return day named in the summons, and putting in an answer to the complaint which joined an issue of fact, demanded, in the usual form, a trial by jury, and paid the fees therefor. The trial was thereupon adjourned, and was from time to time thereafter adjourned until December 4, 1868, on which day the action was called for trial before the said justice, the parties appearing by counsel; and the justice thereupon proceeding to impannel a jury of six men, the defendant by his counsel demanded a jury of twelve men, and insisted that he could not be compelled to go to trial with a jury of six men. The relators by their counsel agreed and were willing to proceed to trial either with a jury of six or twelve, but the justice, holding that the defendant was entitled to a common law jury of twelve, and that he, the said justice, had no power to impannel other than a jury of six, refused to proceed further with the action, and the same remains pending before the justice, undisposed of.

In the action against Kerr, the defendant, at the time of joining issue, insisted that he was entitled to a common law jury of twelve, and the justice then decided that he was entitled to a jury of twelve. The trial was then • adjourned from time to time until February 9, 1869, when the defendant appeared and declared his readiness to proceed with the trial, but the justice held that a common law jury of twelve having been demanded, he had no power to proceed with the trial, and the action remains pending before the justice, undisposed of.

The relators move for two several writs of mandamus, one commanding the justice to try and dispose of the action against Ranney with six jurors, and the other commanding the justice to try and dispose of the action against Kerr with six jurors.

By subdivision 2 of section 3 of the act of April 13, 1857,—relating to the district courts in this city (as amended, Laws of 1858, 569),—these courts have jurisdiction “ in an action upon the charter, ordinance or bylaws of the corporation of the city of New York, or -a statute of this State, where the penalty shall not exceed two hundred and fifty dollars.”

By section 34 of the act of 1857, a trial by jury must be demanded at the time of joining an issue of fact, but when demanded the case may be adjourned until a time fixed for the return of the jury, and this section expressly provides that the issue of fact shall be tried by a jury of six persons to be drawn ont of a list or panel of twelve to be summoned.

It is very clear that the justice was right in holding that he had no power to impannel a jury of twelve to try the actions. These district courts are statutory courts, having all their powers and jurisdiction conferred upon them, and regulated and limited by statutes. The act of 1857 provides for trials, in certain cases, by a jury of six. It makes no provision for a trial in any case or under any circumstances, by a jury of twelve, or of any number other than six.

The constitution of 1846 (the present State constitution) has this provision : “ The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever, but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.”

Ho question is made here, and no question appears to have been made before the justice, that the causes of action, and the amounts claimed in the actions against Ranney and Kerr severally, were not within the jurisdiction conferred on the district court by section 3 of the act of the act of 1857, as amended in 1858 ; but as section 34 of the act of 1857 applies to all cases in which an issue of fact is joined, and a trial by jury claimed, the justice, in holding'that the defendants Ranney and Kerr were severally entitled to a common law jury of twelve, which he had no power to impannel or use in 1ns court, substantially held said section 34 to be unconstitutional and void as to the actions against Ranney and Kerr, and as to the defendants in said actions.

Ho doubt a common law jury consisted of twelve men.

It has been substantially said in several cases in the court of appeals and the supreme court, that the purpose of the constitutional provision which has been quoted, was to secure the continuance of the right of trial by a common law jury of twelve men in cases where or in which a trial by a jury of twelve was used when the constitution was adopted (Cruger v. Hudson River R. R. Co., 12 N. Y. [2 Kern.], 190, 198 ; Wynehamer v. People, 13 Id. [3 Kern.], 427, 458 ; (Reason v. Keteltas, 17 Id., 498; People v. Kennedy, 2 Park. Cr., 317, 321; People v. Carroll, 3 Id., 22 ; Warren v. People, Id., 544 ; Duffy v. People, 6 Hill, 77, 78, &c.; People v. Goravin, 5 Wend., 253 ; Murphy v. People, 2 Cow., 815).

It was not the purpose of the constitutional provision to enlarge the practice or use of trials by a jury of twelve men (Cases before cited, and Lee v. Tillotson, 24 Wend., 337; Rathbun v. Rathbun, 3 How. Pr., 139 ; Sands v. Kimbark, 27 N. Y., 147; Matter of Empire City Bank, 18 N. Y., 199).

But what has been said, if conceded, does not relieve the decision of the constitutional questions presented by the action and decision of the justice in the actions against Ranney and Kerr from difficulties.

To go no farther back, the act of April 5,1813, gave justices of the peace cognizance of certain actions in which the debt, damages, amount, or penalty demanded did not exceed $25, and provided for the trial of issues, at the option of either of the parties by a jury of six, to be drawn from a panel of twelve (1 Rev. Laws of 1813, 387, 391, §§ 1, 9).

The act of April 13, 1824, extended the jurisdiction of justices of the peace, so as to give them jurisdiction, when the balance due, or the damages or thing demanded did not exceed $50, and this act also provided for the trial of issues by a jury of six to be drawn from a panel of twelve (Laws of 1824, 279, 283).

By the Revised Statutes, justices’ courts had jurisdiction in certain specified actions, where the debt or balance due, or damages claimed did not exceed $50 ; and in actions for a penalty not exceeding $50, given by any statute of this State ; and contained substantially the provisions of the acts of 1813 and 1824, as to trials of issues by a jury of six.

By the act of May 14, 1840 (Laws of 1810, 265, &c.), amending the Revised Statutes, the jurisdiction of justices of the peace, in the actions named in the Revised Statutes, was extended so as to give them jurisdiction of such actions, when the debt or balance due or the damages claimed did not exceed $100, and of all actions for a penalty not exceeding $100 given by any statute.

The jurisdiction and proceedings of courts of justices of the peace, as prescribed by the Revised Statutes as amended by the act of 1840, continued in force, so far as I am informed, until the Code of 1848.

Neither the provisions of the Revised Statutes nor either of the acts which have been referred to, applied to the city and county of New York, or to the courts of inferior civil jurisdiction in that city and county ; but from them it must be presumed, that when the constitution of 1846 was being framed, and when it was adopted, trials by a jury of six, or otherwise than a common law jury of twelve, were in use in justices’ courts other than in the city and county of New York, as undertaken to be authorized by the legislation referred to, and ha l been in use in such courts since 1813 ; and, since 1840, had been in use in such courts in actions for a penalty not exceeding $100, given by any statute, and in certain other actions, when the debt or balance due, or the damages claimed, did not exceed $100.

I think the reported cases which have been referred to, show that an insertion in the constitution of 1846, of the provision which has been quoted, and its adoption, should be viewed as recognizing and sanctioning this usage, and as affirming the constitutionality under the constitution of 1822 (which contained a provision in the same words as the one quoted from the constitution of 1846) of the provisions of the Revised Statutes, and acts referred to, which undertook to authorize the usage.

What had been the legislation, and what must be presumed to have been the usage as to trials by a jury of six, or otherwise than by a common law jury of twelve, in the inferior courts of the city of New York, of civil jurisdiction, prior to the constitution of 1846, and what must be presumed to have been such usage in such courts when the constitution was being framed, and when it was adopted %

To go no farther back, the act of April 19, 1813 (2 Rev. Laws of 1813, 370, § 85), provided for the appointment of one assistant justice for ea,ch of the wards of the city, except the ninth, and for two assistant justices for the ninth, and gave such assistant justices power to hold courts for the trial of certain specified actions, when the sum or balance due, or damages or thing demanded, did not exceed $25, and for all sums Of money not exceeding $25 recoverable by suit in any court of record by any statute of this State, and generally for the trial of all such actions as were triable before justices of the peace in the respective counties of the State. Section 95 of the act (page 374) provided for the trial of issues in such courts, at the option of either of the parties, by a jury of six to be drawn from a panel of twelve.

By the act of January 4, 1820, the act of 1813 was amended, so that the assistant justices courts, of the city of Héw York, in all actions of which they had jurisdiction by the act of 1813, had jurisdiction to the amount of $50, and under. This act left the provisions in the act of 1813 as to the trial of issues, in force.

The assistant justices’ courts of the city of Hew York were recognized and continued with their powers and jurisdictions by the Revised Statutes (2 Rev. Stat., 224), and so far as I am informed, existed with such powers and jurisdictions when the constitution of 1846 took effect.

From the legislation relating to these assistant justices’ courts, which has been referred to, it is to be presumed that when the constitution of 1846 was being framed, and when it was adopted, trials by a jury of six, or otherwise than by a jury of twelve, had been used in them since 1813, and that since 1820 such trials had been used in them, in actions for penalties, and other actions of which they had jurisdiction, when the penalty or debt or damages claimed did not exceed $50 ; but it must be conceded that, prior to'the constitution of 1846, the legislature had not undertaken to give these courts jurisdiction in the actions of which they had jurisdiction, to an amount beyond $50 ; and it is to be presumed that trials by a jury of six, or otherwise than by a jury of twelve, prior to the constitution of 1846, had not been used in such courts in actions for the recovery of a penalty, debt, or damages exceeding $50, for it is to be presumed that such actions had not been brought in such courts.

By the act of March 30, 1848, the city of New York was divided into six judicial districts, and a court established in each district, to be called the “justices’ courts of the city of New York.” The act provided for the election of justices for such courts, and gave to the justices to be elected all the powers and jurisdiction of the assistant justices, and abolished the assistant justices’ courts.

By the act of April 12, 1848, the name or designation of “justices’ courts of the city of New York,” was changed back to that of “ assistant justices’ courts of the city of New York.”

The Code of 1848 (which took effect July 1, 1848), recognized and continued substantially the jurisdiction of these courts by the name of “assistant justices’ courts.”

By the Code, as amended in 1849, the style of these courts was again changed to “justices’ courts of the city of New York,” and their jurisdiction as to the sum or amount recoverable extended, as I understand it, to $100.

By the act of April 16, 1852, the style of these courts was changed to that of “district courts in the city of New York.”

The act of April 15, 1857, which has been referred to, which extended (as amended in 1858) the jurisdiction of these “ district courts,” as to the penalty, sum or amount recoverable in them to $250, may be regarded as re-organizing these “district courts,” and as thus amended, in deciding these motions, may be regarded as prescribing their powers, jurisdiction and proceedings, when the actions against Ranney and Kerr were brought.

Now as to the question of constitutional right raised by the proceedings in the action against Kerr, which action is for a penalty of $100, or several penalties in the aggregate amounting to $100, and in which Kerr claimed he had a right to a common law jury of twelve, at the time issue was joined, in view of all that has been said, and of the cases and legislation which have been referred to, I think the modifying words, “in all cases in which it has been heretofore used,” in the provision which has been quoted from the constitution of 1846, should be regarded as recognizing and sanctioning, not merely the usage as to trials otherwise than by a jury of twelve as it then existed, and had been authorized by legislation in courts of justices of the peace, the assistant justices’ courts, and other inferior courts of local jurisdiction, but should be regarded as also recognizing the general principle that the legislature might provide for the trial of actions otherwise than by a common law jury of twelve-in inferior courts of local civil jurisdiction, in which the penalty, debt, damages, balance due or amount claimed did not exceed $100, the amount to which courts of justices of the peace had jurisdiction by the Revised Statutes, as amended by the act of May 14, 1840, before referred to.

The constitutional provision should be viewed as recognizing and protecting the right to a trial by a common law jury of twelve in cases in courts of record, in which it had been theretofore used, but the qualifying words which have been quoted imply that there were and had been trials otherwise than by a common law jury, and the framers of the constitution must be presumed to have had knowledge of previous legislation and usage as to trials otherwise than by a jury of twelve in inferior courts of local jurisdiction, and must be presumed to have recognized and adopted the principle which had dictated the legislature, and which originated and undertook to authorize the usage.

I think the legislature could, without violence to the constitutional provision, give courts of justices of the peace jurisdiction of actions in which the amount claimed did not exceed $100, other than such as these courts had jurisdiction of when the constitution of 1846 was being framed, or when it was adopted, and provide for a compulsory trial at the option of either party by a jury of six, of such additional actions committed to the jurisdiction of courts of justices of the peace ; and I think the legislature could extend the jurisdiction of the assistant justices’ courts in the city of Hew York, by the name of justices’ courts in the city of Hew York, as it seems it did in 1849, by amending the Code so as to give such courts jurisdiction of actions similar to those of which courts of justices of the peace had jurisdiction, when the amount claimed did not exceed $100, and provide for a compulsory trial by a jury of six at the option of either party ; and I think the legislature could and did, constitutionally, in the act of 1857, relating to the district courts of this city, provide for compulsory trials by a jury of six, at the option of either party, as to actions within the jurisdiction of such courts, in which penalty or penalties, debt, damages or amount claimed, did not exceed $100; and irrespective of the question whether these district courts should be regarded as new inferior courts of local civil jurisdiction established under the constitution of 1846, or as substantially the same courts as the former assistant justices’ courts.

The constitution of 1822 contained, in immediate connection with the provision as to trials by jury, this provision: “And no new court shall be instituted but such as shall proceed according to the course of the common law, except such courts of equity,” &c. This provision was left out of the constitution of 1846, but it contains the'following provision: “Inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities, and such courts, except for the cities of Hew York and Buffalo, shall have an uniform organization and juristiction in such cities.”

These views, if correct, are decisive of the case of Kerr ; as it follows from them that Justice Laxe, under the act of 1857, had and has power to impannel a jury of six to try the issues in the action against Kerr, and to try the issues with such jury, and that Kerr could not rightfully claim the protection of the constitutional provision as to trials hy jury.

As to the constitutional question raised hy the proceedings in the action against Ranney for a penalty of $250, or several penalties, in the aggregate amounting to $250 ; I do not think it can he said that the act of 1857 violates his constitutional right to a trial of the issues hy a common law jury of twelve men, for hy subdivision 3 of section 3 of the act he had and has the right at any time after issue joined, and before the trial, to remove the action to the court of common pleas, where he can have a trial hy a jury of twelve men, upon executing an undertaking to the plaintiff with one or more sureties to he approved hy the justice, to pay any judgment which may he recovered against him in the court of common pleas.

I do not think that these terms, upon which he can have a jury of twelve, should he regarded as such a clog upon his constitutional right to a trial hy a jury of twelve as to he a violation of it.

Moreover, Ranney did not claim a right to a jury of twelve at the time issue was joined, nor until after several adjournments, hut at the time issue was joined, he did demand a trial hy jury, which meant such a jury trial as he could have in that court. Now I am not sure that it cannot he said that Ranney waived any right to a jury of twelve, otherwise than hy complying with the terms mentioned in section 3 of the act of 1857.

Upon the whole, I think both motions should he granted without costs ; hut the mandamus in the case of Ranney must be, that Justice Latte try and dispose of the action with a jury of six, unless Ranney removes the action to the court of common pleas under section 3 of the act of 1857 before the commencement of the trial in the district court.  