The opinion
Petition for rehearing denied February 24,1931
On Petition for Rehearing
( 296 P. 50 )
BROWN, J.
The appellant has petitioned for a rehearing, upon the ground that the court erred in holding that he was not entitled to a jury trial. In his brief in support of the petition, he states:
“A jury trial is a constitutional and common law right of every suitor in an action at law from time immemorial. The right to a jury trial is considered so fundamental that it has been written into the constitution of every one of the forty-eight states, including Oregon. To deny one of a jury trial under such circumstances is a very serious matter, unless the law is clear.”
In rendering our original opinion herein, we relied upon and followed the case of
Tribou v. Strowbridge, 7
Or. 156. In that case, Mr. Justice Boise recited the early history of the statute upon which the order herein was based, and held it to be constitutional. This statute is now referred to as Oregon Code 1930, § 2-602.
Section 17, article 1, Oregon Constitution, relating to trial by jury in civil cases, was discussed by Mr. Justice Lord in
Deane v. Willamette Bridge Co.,
22 Or. 167 ( 29 P. 440 15 L. R. A. 614), and again in
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Fleischner v. Citizen’s Investment Co.,
25 Or. 119 ( 35 P. 174 ), where Moore, J., in speaking for the court, adopted the interpretation placed upon it by Mr. Justice Boise in
Tribou v. Strowbridge,
supra, as set out in our original opinion. In the Tribou case the eminent justice held that as the practice prior to the adoption of the Constitution permitted a court of law to refer long accounts for computation, the right to do so continued, notwithstanding the prohibition of the Constitution.
The Tribou case is also followed by Mr. Justice McBride in
Stevens v. Myers,
62 Or. 415 ( 121 P. 434 , 126 P. 29 ), where he quoted from the former case as follows:
“This language of the Constitution indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was secured to them by the laws and practice of the courts at the time of the adoption of the Constitution. * * * So that, in order to ascertain whether such right exists in this case, we must look into the history of our laws and jurisprudence at and before the adoption of the state Constitution. ’ ’
Commenting upon the above excerpt, the learned jurist said:
“This declaration derives additional weight, not only from the great reputation of the jurist who uttered it, but from the additional fact that he sat as a member of the convention which framed the Constitution, and that both his associates, Justices Kelly and Prim, who concurred in the opinion, were members of the same body. Rousseau’s remark that ‘he who made the law best knowns how it should be interpreted,’ applies here with peculiar force. If anybody knew what was in the minds of the framers of the Constitution when they incorporated into it this valuable bulwark of our liberties, these three men knew.” Then follow Oregon citations.
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The constitutional right of every litigant to a jury trial as it existed under the common law at the time of the adoption of the state Constitution should not be nibbled away by narrow application or construction. Our holding herein is not repugnant to this truth. The order objected to by the appellant is based upon Oregon Code 1930, § 2-602, which is set forth in our original opinion. And, as evidencing the fact that the reference of the case was in accordance with this section, we direct attention to that opinion. It should be noted here that the accounts in the case at bar are longer and much more complicated than were those in the Tribou case, decided by Justices Boise, Kelly and Prim. The statute in question is valid and was properly applied in this cause. Manifestly, in a search for the truth a reference was in the interest of right and justice.
The petition for rehearing will be denied.
Bean, C. J., Kelly and Campbell, JJ., concur.