the several departments of the government are carefully distributed and restricted, if any one of them exceeds the limits of its constitutional power, it acts wholly without authority itself, and can confer no authority upon others. The defendant could derive no power or jurisdiction from a void statute. He therefore acted without any jurisdiction; and, upon familiar and well settled principles, is liable in this action."

Kelly vs. Bemis, 4 Gray (Mass.), 83.

"When a statute is adjudged to be unconstitutional, it is as if it had not been. Rights can not be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made."

Cooley's Constitutional Limitations (6th
Edition), 222.

To declare an act of the legislature unconstitutional and void is always a delicate duty for the courts, and much more so for an Attorney General. A conviction of the soundness of my conclusions in this case is my justification for the position which I have taken in this matter. If any person who is affected by your official action under this opinion doubts the soundness of my conclusions he is at liberty to take immediate steps for the purpose of bringing this act before some court of competent jurisdiction for the purpose of having a judicial determination of the question here involved. If the honorable members of the Twelfth General Assembly should accept my conclusions in this matter as sound, they will not be seriously embarrassed in the discharge of their duties, for the reason that the act of 1891 makes provision for the employment of a large number of officers and employes of the General Assembly, and that body has it within its power to promptly pass a legal and valid statute providing for the number and compensation

of such employes as it may deem necessary for the proper discharge of its business.

Respectfully yours,

D. M. CAMPBELL,
Attorney General.

By CALVIN E. REED,

Assistant.

TO HON. GEORGE W. TEMPLE,

Auditor of State,

Capitol Building, City.

IN RE

JURIES IN CIVIL CASES.

A statute providing for other than a unanimous verdict is unconstitutional.

State of Colorado,

Attorney General's Office.

Denver, Colorado, January 30, 1899.

Sir-I am in receipt of your official communication of the 23d instant, enclosing a printed copy of Senate Bill No. 142, and requesting my official opinion as to the constitutionality of the same.

The said bill provides that "In all civil cases in courts of record which shall be tried by a jury, threefourths of the number of jurors sitting in such case may concur in and return a verdict therein."

I am advised by your letter that it is the intention of the judiciary committee of the Senate to so amend the said bill that five out of six or nine out of twelve jurors may render a verdict in civil cases.

The constitutionality of this bill, or, in other words, the question as to the right of the legislature to enact such a law is one which depends for its determination upon a proper construction of that part of the Constitution of Colorado known as the "Bill of Rights." The determination of this question depends upon the extent to which the Bill of Rights has guaranteed to the citizens of this state a trial by jury. In the absence of any guarantee in the Constitution of a jury trial, the legislature would have undoubted power to adopt a law of this character. A proper construction of the Bill of Rights can only be reached by a consideration of the essential requisites of the common law jury, and the question as to how far those requisites have been preserved by the Bill of Rights to the citizens of this state free from legislative control.

"Ever since Magna Charta, the right to a trial by jury has been esteemed a peculiarly dear and inestimable privilege by the English race."

Proffatt on Jury Trial, Section 81.

"The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated into and secured in every State Constitution in the Union."

Parsons vs. Bedford, 3 Pet. (U. S.), 441, 446.

"An institution that has so long stood the trying tests of time and experience, that has so long been guarded with such scrupulous care, and commanded the admiration of so many of the wise and good, justly demands our jealous scrutiny when innovations are attempted to be made upon it."

Work vs. The State, 2 O. St., 296, 303.

"Just how it had its origin is involved in some mystery; but, whatever its origin, the right of trial by a jury of twelve men became fixed centuries ago in the common law, and una

nimity of verdict became requisite, until, wherever the AngloSaxon tongue was spoken, and in many other countries, this right came to be regarded as the great bulwark of the liberty of the citizen. Whether charged with an offense against the commonwealth, or in a controversy with another, the right could always be invoked. When separated from the mother country, we regarded it as a birthright, and have ever been jealous of any attempted innovations upon the system."

McRae vs. Railroad Company, 93 Mich., 399, 401.

The Constitution of the state of Missouri provides that the trial by jury shall remain inviolate:

"The meaning of which is, that with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men; they must have a good fame, possess integrity and intelligence; they must not be aliens, vagrants, outlaws, nor under the conviction of crimes. They must all be under oath when they try a fact or cause; they must all agree in their verdict; and the right to have disputed facts tried by such a jury, and in such a manner is to remain inviolate."

Bank of Missouri vs. Anderson, 1 Mo., 174, 175.

"We regard it as a well-settled and unquestioned rule of construction that the language used by the legislature, in the statutes enacted by them, and that used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the Constitution and the laws were adopted.

"The terms 'jury,' and 'trial by jury,' are and for ages have been well known in the language of the law. They were used at the adoption of the constitution, and always, it is believed, before that time, and almost always since, in a single

sense.

"A jury for the trial of a cause was a body of twelve men, described as upright, well qualified and lawful men, disinterested and impartial, not of kin, nor personal dependents of either of the parties, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all bias in favor or against either party, duly empaneled under the direc

tion of a competent court, sworn to render a true verdict according to the law and the evidence given them; who, after hearing the parties and their evidence, and receiving the instruction of the court relative to the law involved in the trial, and delibererating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them."

Opinion of the Justices, 41 N. H., 550, 551.

"The term 'trial by jury' was well known and understood at the common law, and in that sense it was adopted in our bill of rights."

Vaughn vs. Scade, 30 Mo., 600, 604.

"The unanimity of the twelve members constituting the jury is another essential attribute of a trial jury. To accept a verdict of any number less than the whole is quite foreign to the idea suggested by a jury trial as it has been established for centuries, and as now generally presented to us. * * * The practice is so ancient and so long sanctioned, that the idea of unanimity becomes inseparably connected in our minds with a verdict."

Proffatt on Jury Trial, Section 77.

The Federal Constitution, when adopted, preserved the trial by jury in criminal cases, but by silence in regard to the trial in civil cases, left that matter to the discretion of Congress. This omission from the Federal Constitution of a guarantee of a trial by jury in civil cases caused much public discontent and disapprobation.

Proffatt on Jury Trial, Section 83.

"One of the strongest objections originally taken against the Constitution of the United States was the want of an express provision securing the right of trial by jury in civil cases. As soon as the Constitution was adopted this right was secured by the Seventh Amendment to the Constitution proposed by Congress, and which received an assent of the people so general as to establish its importance as a fundamental guarantee of the rights and liberties of the people."

Parsons vs. Bedford, 3 Pet. (U. S.), 441,

446.