
    FLETCHER HUMPHREY, APPELLEE, v. CHARLES W. EAKELEY, APPELLANT.
    Submitted March 28, 1905
    Decided June 12, 1905.
    The amendment to the District Court act approved April 8th, 1903 (Pamph. L., p. 505), which provides that unléss the party demanding- a trial by jury shall pay the costs of the venire his demand shall be deemed to be waived, is constitutional.
    On appeal from District Court.
    Before Justices Dixon, Garrison and Swayzu.
    For the appellant, Alexander Grant and James B. McKee.
    
    For the appellee, Joel Earner t.
    
   The opinion of the court was delivered by

Garrison, J.

This appeal brings up a judgment rendered, in favor of the appellee in an action on contract tried before the District Court without a jury. The state of the case for appeal shows that on the return day of the summons, and again on the day set for trial, the appellant demanded a trial by jury without being required to advance the cost of the venire, which was denied by the District Court, and constitutes the sole ground now urged for the reversal of its judgment. The statutory regulation affecting this subject is contained in an amendment to the District Court act, approved April 8th, 1903 (Pamph. L., p. 505), which provides that unless the party demanding a trial by jury “shall at the time of making such demand pay the cost of the venire, the demand for trial by jury shall be deemed to be waived.” The question to be decided, therefore, is the constitutionality of this legislative regulation, the constitutional provision upon the subject being that “the right of trial by jury shall remain inviolate” (article 1, section 7).

When the case of Clayton, v. Clark, 26 Vroom 539, was before this court, the amendment to the District Court act above cited had not been passed; we therefore declined to express any opinion upon the question that is now for the first time presented for decision. The opinion delivered in that case, however, speaking of this constitutional provision, said: “The language of that instrument with respect to this mode of trial is that it shall remain inviolate, not that it shall be unalterable; so that the limits of legislative action are not so circumscribed as to preclude the exercise of some power over the jurisdiction and procedure of inferior courts, although the existence of even such a power was doubted by Mr. Justice Elmer, in State v. Ziegler, 3 Vroom 262. Legislative action of this kind has received judicial sanction in many of the courts of this country [citing authorities]. The narrower question, viz., whether the legislature may constitutionally require that the party demanding the jury shall advance the expenses of the venire, has likewise been affirmed in several jurisdictions [citing a number of cases] .”

Upon a re-examination of the cases thus cited, to which should be added Edwards v. Elliott, 7 Vroom 449, and the cases cited in the notes to 17 Am. & Eng. Encycl. L. 1107, we are satisfied that the weight of authority and reason sustains the right of the legislature to provide, in the first instance, for the payment of jurors and the expenses of a venire, and that the incidental, and possibly temporary, burden so cast upon a litigant is not an infringement of his constitutional right of trial by jury. Many of our unchallenged modes of procedure, as was pointed out by Mr. Justice Scudder, in Edwards v. Elliott, vide supra, have this same incidental effect, to which may be added the seventy-fourth rule of this court, which directs the clerk to forbear to enter any paper until the attorney of the party shall have paid all fees due to the said clerk. '

The difference between the incidental effect of a general rule of practice and a legislative invasion of the right of trial by jury marks a valid distinction based upon the language of the constitution itself; for, without laying too much stress upon verbal definition, it must not he overlooked that the essential meaning of “inviolate” is freedom from hurt, harm, defilement, profanation or such other idea connoting partial destruction or substantial impairment, and that it in no sense imports immunity from all regulation.

Our conclusion is that the amendment to' the District Court act of April 8th, 1903, is constitutional, and that the judgment brought up by this appeal should be affirmed.  