A proposed bill which allowed a jury of 12 to return a verdict by 3/4ths of the members would not be constitutional.

in support of my opinion on the subject of "Rules of Construc- tion," I cite the following authorities: Cahill v. State, 36 Ind. App. 507 (76 N. E. 182) Rushville et al. v. Gas Company et al., 132 Ind. 575; State v. Brugh, 5 Ind. App. 592; State Board of Tax Commissioners v. Iolliday et a]., 105 Ind. 216; State v. Gerhardt, 145 Ind. 439; Bush v. City of Indianapolis, 120 Ind. 476. And upon the subject "A license fee is not a tax, but a regu- lation," I cite the following authorities: Cooley on Taxation, Vol. 2, pp. 1125, 1142; Am. & Eng. Ency. of Law, Vol. 7, p. 223; Thomasson v. State, 15 Ind. 449; Ristine v. Clemens, 31 Ind. App. 338; City of Indianapolis v. Bieler, 138 Ind. 30; Emerich v. City of Indianapolis, 118 Ind. 279; McKinney v. Towin of Salem, 77 Ind. 213; State v. Hudson, 78 Alo. 305 ; State v. Hipp, 38 Ohio St. 225. BILLS-SENATE BILL NO. 33 (JURY SHALL CONSIST OF 12 JURORS, OR ANY NUMBER DIVISIBLE BY 4, ETC.) January 28, 1907. To the Senate Committee on Judiciary: Gentlemen-You have referred to me Senate Bill No. 33 pro- viding that when in civil cases the jury shall consist of twelve jurors, or any number divisible by four, three-fourths thereof shall be sufficient to return a verdict: and if such number be not divisible by four, not less than three-fourths of the jury must agree upon the verdict. You ask my opinion whether said bill, if enacted into a law, would be constitutional. Section 20 of article I of the constitution of the state of In- diana provides: "In all civil cases, the right of trial by jury shall re- main inviolate." In construing this clause of the constitution the supreme court has said, in Allen v. Anderson, 57 Ind. 388, 389: "This provision of the cons'titution was adopted in ref- erence to the common* law right of trial by jury, as the lan- guage plainly imports, namely, that the right 'shall remain inviolate,' that is conlinue as i1 was. At common law one of the essential elements in the verdict of a jury was unanimity. As stated in History of English Law, Vol. 2 (Pollock and Maitland), page 625: "It is to the presence of these three elements that we may ascribe the ultimate victory of that principle of our law which requires an unanimous verdict Grad- ually all these plans are abandoned and unanimity is re- quired. The victory is not complete until the fourteenth century is no longer young; but from the moment when our records begin, we seem to see a strong desire for imanimity. In a thousand cases the jury is put before us as speaking with a single voice, while any traces of dis- sent or of a nescience confessed by some only of the jurors are very rare." In Thayer's Preliminary Treatise on Evidence, page 89, it is said : ... I"he requirement of twelve in the petit jury unless by consent, and the need of unanimity, seemed now (14th century) to have become the settled rule." iThe constitution of this state, in declaring that the right of trial by jury should remain inviolate, intended to preserve the right to trial by a common law jury which should render a unani- mous verdict. Hence, a change such as is proposed by the bill in question, would, to a material extent, defeat the object of the above constitutional guaranty. A similar question has arisen in Colorado, where the consti- tution of the state provided as follows: "The right of trial by jury shall remain inviolate in criminal cases, but a jury in civil cases, in all courts, or in criminal cases in courts not of record, may consist of less than twelve men, as may be prescribed by law.' A statute was passed as follows: "Hereafter, in all civil eases in courts of record which shall be tried by a jury, not less than three-fourths of the number of jurors sitting in such case may concur in and re- turn a verdict therein, and such verdict shall have the same force and effect as though found and returned by all of the jurors sitting in said case." In holding the latter enactment unconstitutional, the supreme court of Colorado say, in City of Denver v. Hyatt, 63 Flac. Rep. 403, 409: T.rf'he conclusion is irresistible that a fair construction of the section is that thereby the right of trial by jury in civil cases, as provided by the common law, is preserved in all its essentials except the one of number. The constitu- tion being but a limitation upon the authority of the leg- islature, it was wholly unnecessary to make any provision on the subject of trial by jury in civil cases if it was the intention to adopt a constitution which placed no restric- tions upon the power of the legislature to enact laws re- garding that right." A similar conclusion was reached in Wyoming, where the rule of unanimity in verdict was sought to be abolished by statute. The court hold, in First National Bank v. Foster,.61 Pac. Rep. 466, 467: ... T]here is no specific mention in the section or any- where in the constitution of the third essential of unanim- ity. It is then to be deemed a matter unprovided for, a right not preserved, leaving the legislature a.t full liberty to enact such laws upon the subject as it may deem proper, unrestrained by the constitution ? We do not think so. *'a "I * We think the intention of' the framers rea- sonably appears to have been to preserve the right invio- late in criminal cases, and to point out, by way of permis- sion, to the legislature, wherein the common law right might be invaded by statute in civil cases. It is as if the constitution had said: 'With reference to the right of trial by jury, it is provided that in criminal cases it shall remain in all respects as heretofore. In civil cases it shall remain as heretofore, except that the legislature may pro- vide for a number less than twelve to constitute a jury. -1,, 1 Some other states adopting constitutions in coin- paratively recent years have provided for the change in the jury system attempted in the act under consideration. But in every case, so far as our investigation has extended, the change has been made either by a direct constitutional provision or by speific authority contained in the constitu- tion empowering the legislature to make it. In order to sustain the constitutionality of this section of the statute, it is necessary for this court to say that there is no right of trial by jury in civil cases under the constitu- tion in this state, but that- each successive session of the legislature may invent and establish any mode of trial that the whim of the hour or any supposed exigencies of con- venience or economy might dictate. 0 4 ' It is per- fectly clear that no such revolutionary destruction of an- cient landmarks was ever contemplated. The whole tenor of the instrument makes it plain that the ancient method of trial by jury was not to be abandoned, but was to be re- tained and preserved except as designated in the consti- tution itself, and what the essentials of that method are is not a matter of construction or conjecture. We think the statute is clearly unconstitutional." In Gabbert v. Ry. Co. 171 Mo. 84, 70 S. W. 891, the supreme court of Missouri, while holding that the common law rule of unanimity in verdict might be altered by constitutional amendment, say, on page 897: "Said section 28 (of the constitution) secured to the people of this state the common law right of trial by jury, by which was meant a trial by 12 disinterested jurors, whose verdict must be inanmois, in all trials in courts of record.'' The constitution of Missouri, section 28, provided that: ''The right of trial by *jury as heretofore enjoyed shall remain inviolate." Aly opinion therefore is, that the proposed bill, if enacted into a law, would be unconstitutional. SUPEnINT[ENDENTl OF PIUBIAC INSTR UCTION--CO\l PEN- SATION FOR SERVICES IN CONNECTION WTI I STATE BOARD OF EDUCATION. lon. Fassett A. Cotton. Superintendent of Public Instruction: Dear Sir.-I am in receipt of your communication of January 2. ii; which you ask whether, in my opinion, you are entitled to charge the state for services rendered by you in connection with