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U.S. Supreme Court

American Publishing Co. v. Fisher, 166 U.S. 464 (1897)

American Publishing Co. v. Fisher

Argued March 29, 1891

Decided April 12, 1897

166 U.S. 464


The statute of the Territory of Utah (Compiled Laws of 1888, § 3371, as amended in 1892) providing that "in all civil cases, a verdict may be rendered on the concurrence therein of nine or more members of the jury," if not invalid under the Seventh Amendment to the Constitution, is so as violating the provision in the Act of September 9, 1850, admitting Utah as a territory, that

"the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah so far as the same or any provisions thereof may be applicable,"

and the Act of April 7, 1874, c. 80, "concerning the practice in territorial courts, and appeals therefrom," which provided that "no party

Page 166 U. S. 465

shall be deprived of the right of trial by jury in cases cognizable at common law."

Litigants in common law actions in the courts of that territory, while it remained a territory, had a right to trial by jury, which involved unanimity in the verdict, and this right could not be taken away by territorial legislation.

The power of a state to change the rule in respect of unanimity of juries is not before the Court in this case.

On April 29, 1891, plaintiff in error commenced an action in the District Court of Salt Lake County, Territory of Utah, to recover of defendants the sum of $20,844.75 on a contract for furnishing labels, cards, etc. After answer, the case came on for trial before a jury on December 10, 1892, and resulted in a verdict in favor of the defendants, signed by nine jurors, the others not concurring. Judgment was rendered upon this verdict, which was sustained by the supreme court of the territory. 10 Utah 147.

This action of the trial and supreme courts in sustaining a verdict returned by only nine of the jurors was under the authority of an act of the Legislature of Utah approved March 10, 1892 (Laws Utah, 1892, p. 46), which provides as follows:

"SEC 1. That § 3371 of the Compiled Laws of 1888 of Utah is hereby amended so as to read as follows:"

"SEC. 3371. In all civil cases, a verdict may be rendered on the concurrence therein of nine or more members of the jury."

The bill of exceptions contains this recital in respect to an instruction and the verdict:

"The court further charges you that the concurrence of nine or more members of the jury is essential to your verdict, and that all who agree to it should sign it"

"(To which last charge the plaintiff duly excepted.)"

"The jury, having retired and deliberated, returned a written verdict into court on the 12th day of December, 1892, 'finding the issues for the defendant,' signed by nine (9) of its members, the others refusing to concur therein. Which verdict the court then and there received, and caused to be entered upon the record."

"To which action of the court the plaintiff excepted. "

Page 166 U. S. 466

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