
    The City Loan & Savings Co., Appellee, v. Buckley et al., Appellants.
    (No. 30206
    Decided May 16, 1945.)
    
      
      Mr. Sidney Rigelhaupt, for appellee.
    
      Mr. Israel Freeman, for the city of Youngstown.
    
      Mr. Morris Mendelssohn, for appellants.
   By the Court.

The question presented is one entirely of statutory construction. The Youngstown Municipal Court Act, Section 1579-127 et seq., General Code, creates and regulates the operation of the Municipal Court of Youngstown. By its provisions the proceeding of choosing and summoning of jurors is authorized to be done in accordance with the rules to be adopted by the Municipal Court. Pursuant to rules so adopted, names of prospective jurors theretofore placed in a jury wheel are drawn at any time or for any case as ordered by the court, there being no specification or limitation as to the number.

It is specifically provided by Section 1579-144, General Code, that the fees of such jurors shall be paid out of the treasury of the city of Youngstown. However, it is provided in Section 1579-143, General Code, that “In all civil actions and proceedings the cost of summoning jurors and the fees of jurors shall be taxed as part of the costs.”

These provisions are in pari materia and of course must be construed together and given effect in accordance with the plain language employed. It becomes clear, therefore, that such fees, as well as the costs of summoning jurors, are to be paid out of the city treasury and reimbursement is to be made upon the collection thereof from the party to the suit against whom they are assessed. There is no conflict in these provisions.

As above noted, there is no specification by law or rule as to the number of jurors to be called in any case; that, for obvious reasons, being left to the discretion of the court. The jury in civil actions is composed of six “unless the parties agree on a less number.” All causes in the Municipal Court are tried by the judge unless a timely demand for a jury is made by either party. The validity of such provision, as well as that authorizing the cost of summoning jurors and the fees of jurors to be taxed as part of the costs, has long been settled in this state. Miller, Recr., v. Eagle, 96 Ohio St., 106, 117 N. E., 23.

We find no conflict between the statutory provisions above referred to and those of Section 1579-170, General Code. The provisions of that section, which is also a part of the Youngstown Municipal Court Act, are general and deal with the entire matter of fees and costs, and the manner of taxing same as “provided by law for actions heard and determined in a Court of Common Pleas.”

The provisions of the prior sections of the act which relate to. costs for jury service are specific and therefore constitute an exception to the broad and general provisions of Section 1579-170, General Code.

The only question remaining is whether fees may be taxed for the jurors who are called and report for duty, or for only those who actually serve as members of the jury in the trial of the case.

Throughout the provisions of the statute constituting'the Youngstown Municipal Court Act, all who are brought into court to serve as jurors pursuant to summons are designated “jurors.” It is made the duty of the trial judge “to cause to be interrogated all jurors summoned for service.” There is no word of distinction anywhere in the act between those who actually serve in the trial of the case and those who are excused after being brought into court and interrogated as to their qualifications to serve.

We are in entire accord, not only with conclusions of the Court of Appeals, but with the reasons assigned therefor and also its observation that if it appears that undue hardship is caused a litigant by the law as enacted, appeal should be made for amendment or repeal thereof by the legislative branch of the government. That is not a judicial function.

Judgment affirmed.

Weygandt, C. J., Zimmerman, Williams, Turner and Matthias, JJ., concur.

Bell and Hart, JJ., dissent.

Hart, J.,

dissenting. I agree that, under the Youngstown Municipal Court Act, fees of jurors are to be paid out of the city treasury in the first instance, and that the treasury is entitled to reimbursement from the party to the suit against whom such costs are properly assessed. My dissent relates to what is meant by jury fees which may be taxed as costs under the statute.

Statutes assessing costs, like statutes assessing taxes, must be strictly construed in favor of the litigant against whom they are assessed. The statute in question provides that jury fees shall be taxed as costs against the unsuccessful party. Jurors comprising a jury are those who have been sworn and sit as such in the case in question. Until sworn, they are not jurors, but veniremen. This interpretation of the term “juror” is supported by the lexicographers and judicial authority. The term “juror” is derived from the latin word “juro” meaning “to swear.” Bouvier’s Law Dictionary says a juror is a man who is 'sworn or affirmed to serve on a jury; and a jury is a body of men who are sworn to declare the facts of a case as they are proven from the evidence placed before them. The Century Dictionary says that a “juror” is one who has taken an oath; a member of any jury; one of a body of persons sworn to deliver a verdict in a case submitted to them.

Under some procedural statutes the term “juror” may be broadly applied to persons who are selected as a group from which jurors may be chosen. For instance, a member of a jury-panel, who has not been sworn to try an issue in any particular case, may be regarded as a juror so far as disciplinary action of the court is concerned. Marvin v. District Court of Polk County, 126 Iowa, 355, 102 N. W., 119; People v. Newmark, 312 Ill., 625, 630, 144 N. E., 338.

Persons so summoned are veniremen and remain veniremen until they are sworn as jurors. If they are not sworn as jurors the fee paid them is not a jury fee covering the duration of the trial, but a fee for appearance in court for a single day because summoned as veniremen.

Under statutes providing for the taxing of fees of jurors against a defendant in any particular case, reason dictates that the term “juror” should be confined to those persons who are selected and sworn and who participate in the verdict in the particular case. Otherwise, the amount of costs which may be taxed for jury fees is left to the whim or caprice of the officer calling the veniremen.

In the case of State v. Voorhies, 12 Wash., 53, 40 P., 620, the Supreme Court of Washington holds that men in the jury box, each of whom has been passed for cause, but none of whom had been sworn as jurors, are not jurors so as to prevent their separation during a-recess taken in order to summon an additional venire. The term “juror” as used in a Kentucky statute, allowing to a clerk of courts a fee of twenty-five cents for excusing jurors, was held to apply to such jurors only as were actually accepted and sworn. Greene, Aud., v. Smither, 178 Ky., 742, 744, 202 S. W., 485. Likewise, it has been held that a person who was merely sworn in order to ascertain his qualifications as a juror, is not a juror within a provision authorizing a fee for administering an oath or affirmation, except to a juror. Marsh v. United States, 88 F., 879, 882.

In my view, only the fees of jurors who actually were sworn and participated in the case, as such, should have been taxed as costs, and the judgment of the Court of Appeals should be modified to the extent here indicated and, as modified, affirmed.

Bell, J., concurs in the foregoing dissenting opinion.  