This case now passes off upon the single question that this court is without *Page 472 jurisdiction. If the amount involved was to determine our jurisdiction there would be an absence of jurisdiction. But there was a demand for a jury by the losing party nisi. This demand was refused, and the constitutional question was injected into the case and preserved throughout. The court nisi is alleged to have denied the jury upon the ground that there was an equitable defense interposed. If there was in fact an constitutional question involved, the jurisdiction is here for all purposes. This is hornbook law.
The majority opinion undertakes to dispose of the matter by denominating the action of the court as mere error. The refusing of any constitutional right is error upon the part of the trial court, but if the question is properly lodged in the case it is a right which the litigant is entitled to have determined by the Supreme Court. The Constitution gives to this court jurisdiction "in cases involving the construction of the Constitution of the United States, or of this State."
The word "construction" as herein used does not mean that you have to make an analysis of the language of the Constitution, and there stop. Usually the words of the constitutional provision are so simple, concise and plain, that their meaning appears upon the face of it at a glance. Such is true of the right to trial by jury and due process of law. But what is meant by the word "construction" as used in our organic law, is that the courts shall take the plain language of the Constitution alleged to have been violated (in this case the provision as to a jury) along with all the facts and circumstances, and from them all say whether or not a constitutional right has been invaded. Sometimes the surrounding circumstances include both a pleading and a statute Such was the situation in Ice Co. v. Tamm, 138 Mo. l.c. 387. Sometimes it only involves the construction of a statute, as in Dorrance v. Dorrance, 242 Mo. l.c. 644, whereat it is said:
"There can be no question that the court, in sustaining the demurrer, did so upon the ground that *Page 473 the statute so pleaded by the appellant was valid and constitutional; that it applies to the judgment in question, and protects it against this proceeding in equity to set it aside. A careful examination of the briefs of the parties shows that this is the theory upon which the issues raised by the petition and demurrer were tried, and are presented here."
But there is no better discussion of what is meant by the word "construction" as used in our Constitution, than is given by BROWN, J., in this Dorrance Case, and at the expense of brevity we quote as follows:
"As we have already suggested, the Constitution of this State provides that the Supreme Court shall have exclusive jurisdiction `in cases involving the construction of the Constitution of the United States, or of this State.' Construction is a broad term, and perhaps as instructive a definition as could be stated is quoted from Abbott in Webster's International Dictionary as follows: `Strictly, the term [construction] signifies determining the meaning and proper effect of language by a consideration of the subject-matter and attendant circumstances in connection with the words employed.' In other words, it does not stop with interpretation, but applies the language as interpreted to both the subject-matter and the attendant circumstances. The constitutional provision does not, to give this court jurisdiction in this case, require findings that some constitutional provision has been violated, or constitutional right denied, for that is the ultimate object for which the jurisdiction exists. It is only necessary that a constitutional question be presented to the court in the manner required by the rules governing its practice, and on its presentation the jurisdiction attaches to determine it. This is made clear by Mr. Justice HARLAN in Insurance Company v. Needles, 113 U.S. 574. He said: `Our jurisdiction is not defeated, because it may appear, upon examination of this Federal question, that the statutes of Illinois are not repugnant to the provisions of that instrument. Such an examination itself involves the *Page 474 exercise of jurisdiction.' The jurisdiction does not depend upon the validity of the claim set up under the Constitution or laws. It is enough if the claim involves a clear and substantial dispute or controversy."
If we read English right a "construction" of our Constitution is involved if we have to look at the language of the organic law, and compare its language with the circumstances of the case in order to determine whether or not there is a constitutional right invaded. In the Dorrance Case we looked into the pleaded facts as to the service in the divorce case and found, under the allegations in the petition, the service to have been procured by false swearing and fraud, which facts stood admitted by the demurrer. We also concluded that the trial court sustained the demurrer because such court found and believed Section 2932, Revised Statutes 1899, forbid the setting aside of the divorce decree, after the end of the term. With all these facts (including the statute) it was charged that if this statute precluded the right to have the decree set aside then such statute violated the due process clause of the Federal Constitution. We ruled that the statute did not apply to the case, and thereby corrected the error (as would be urged under the majority opinion) of the trial court, but we did rule that there was a constitutional question so as to give us jurisdiction. We did consider the simple language of the Constitution along with the other alleged facts to determine jurisdiction. We only construe constitutions when their meaning is invoked by the circumstances of the case. The way we construe it is by examining the circumstances, and by then saying under these circumstances the simple mandate of the Constitution has been invaded. We don't write a philippic or a eulogy upon the few simple words of the organic law, nor do we analyze them with pedagogical exactness and narrowness. Such does not fall within the meaning of "construction" as given in the books. Let me reiterate here, that the only way a constitutional provision is construed (or subjected to construction) is *Page 475 to apply the facts and circumstances in the case to the language of the Constitution, and from it all determine whether or not a constitutional right is invaded. This is the definition of the word "construction" given the Dorrance Case, supra.
Let us view the case of State v. Keefe, 17 Wyo. 227, for a moment. The facts are few and simple. Keefe was convicted and sent to the penitentiary for four years for manslaughter. At the time there were other charges of a more serious nature against him. There are in Wyoming statutes providing for giving a criminal a speedy trial, just as we have in this State, and which were discussed by us in State ex rel. Stevens v. Wurdeman,295 Mo. 566. The only difference is that the Wyoming statutes are shorter terms of limitations. They have there as here a constitutional provision for a speedy trial. After all these statutes had run, whilst Keefe was in the penitentiary, and when the time was about to arrive for his liberty, Keefe, through his counsel, moved for a discharge from other pending charges, and that court had best speak the facts from hence on, as follows:
"It is apparent that the ultimate question here involved is whether upon the facts the delay in prosecuting the defendant upon the pending information has resulted in depriving him of the right to a speedy trial within the meaning of the constitutional provision, and, in that connection, whether the statutory provisions quoted above were applicable to the defendant during the term of his imprisonment in the penitentiary, or whether the fact of his conviction, sentence and imprisonment upon the one information furnishes a sufficient excuse for not having brought him to trial upon the other. Indeed, that is practically the sole question that has been argued upon the merits of the case, it being contended on the one hand that the defendant having been in prison comes strictly within the provisions of Sections 5382 and 5384, and on the other that while in the penitentiary serving the sentence imposed upon his conviction of another offense, the statute *Page 476 did not apply, because he was not then and there detained by virtue of any commitment upon the pending information.
"A preliminary question of jurisdiction has been suggested. While expressing a preference that the question be decided upon this hearing, thereby saving the prosecution as well as the defendant much trouble and expense should the defendant be entitled to be discharged, counsel for the State suggest that the questions reserved for decision seem to require nothing beyond the construction of the statute, and that since constitutional questions only are authorized by law to be brought here in this manner for decision, the jurisdiction of the court is doubtful.
"But we entertain no doubt of the jurisdiction of the court in this proceeding. It is true that none but a pending constitutional question may be reserved and sent to this court for decision upon the order of a district court. [R.S. 1899, sec. 4276, as amended by Ch. 72, Sess. Laws 1903.] But the questions here reserved are clearly constitutional, for they involve the constitutional right of an accused in a criminal prosecution to a speedy trial, which right is claimed to have been violated in this case. The statute supplements the constitutional provision and secures or provides a method for securing the right thereby declared. It is to be regarded as enacted for the purpose of rendering the constitutional guaranty effective, and as a legislative declaration of what is and what is not, under the circumstances named, a reasonable and proper delay in bringing an accused to trial in respect of his constitutional right aforesaid."
The court looked at both the facts and the statutes, and from them all concluded that Keefe had not been given his constitutional right of a speedy trial, closing their opinion with this language:
"The court decides that the fact of defendant's imprisonment in the penitentiary, under the circumstances set forth in the agreed statement of facts, does *Page 477 not constitute a sufficient defense to the application of the defendant for his discharge; that Sections 5382 and 5384 apply to the defendant, and upon the facts the defendant has not had a speedy trial, as provided in the Constitution."
The statutes mentioned were the statutes providing when criminals should be brought to trial. In other words, the court said that under all the circumstances the defendant did not receive a speedy trial under the simple language of the Constitution. The court construed the constitutional provision along with the facts of the situation, as is the only method of giving construction to a constitutional provision.
The following additional cases from Missouri are applicable, and some in exact point. [Tinsley v. Kemery, 83 Mo. App. l.c. 97; Tinsley v. Kemery, 170 Mo. 310, where we tried out the case in our court; Lincoln Trust Co. v. Nathan, 175 Mo. l.c. 41.] The latter case only involved $1200 but (as in the case at bar) contained an alleged answer in equity. In that we said:
"The case came on for trial on October 22, 1900, and the plaintiffs demanded a trial by jury, which the court denied, and the plaintiffs duly excepted. Hence the appeal to andjurisdiction of this court."
We shall go no further. We do earnestly contend that the only "construction" which can be given to a constitutional provision, is by taking all the facts in a case (sometimes pleadings alone, sometimes statutes alone, and sometimes both combined) and from all the facts determine whether or not a constitutional right has been invaded. This is when we have a "construction" of the organic law. And when such a "construction" is demanded by a proper preservation of the point (as we have in the instant case) then the Supreme Court has jurisdiction for all purposes. I therefore dissent. Walker and Woodson, JJ., concur in these views. *Page 478