dissenting:
We regard the opinions filed in this case prior to the foregoing as correctly stating the law. We dissent from the judgment now entered because we believe this court is without power to render that judgment in the absence of the verdict of a jury in favor of relator, and we do not join in the criticisms of judges and jurors found in the majority opinion.
This proceeding was begun in this court under that provision of the constitution which confers upon the Supreme Court original jurisdiction “in mandamus-The majority opinion sets aside the verdict of the jury for the reason that it is unsupported by any evidence and directs the entry of a judgment in this court contrary to the finding of the jury. In this case the constitution guarantees to the respondents a trial by jury. A court of original jurisdiction (and it is in that capacity that this court determines this cause) is without authority to set aside a verdict and enter a judgment contrary to the finding of the jury in a mandamus suit.
It is said by the majority that the constitutional provision that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” does not apply in this case, because it does not confer such a right in any class of cases where it had not formerly existed, nor in a court such as this, which had never been provided with a jury or accustomed to try cases by that method. In support of that statement Ward v. Farwell, 97 Ill. 593, and Moody v. Found, 208 id. 78, are cited. In our judgment neither of those authorities has any bearing upon this question. Those cases were both cases of a kind in which the right to a trial by jury never had been enjoyed, so that the constitution had no application to them in so far as the guaranty of trial by jury is concerned. Neither of them bears in any respect upon the question as to whether or not the right to trial by jury in a common law suit is taken away where jurisdiction to try the suit is conferred upon a court which is provided with no method for securing a constitutional jury. In fact, in the Farwell case it is said: “Of course, it would not be competent for the legislature to defeat the right of trial by jury in common law cases by simply declaring they might be tried in courts of chancery and that the proceedings therein should conform to the proceedings in chancery causes. This would simply be an attempted evasion of the provisions of the constitution.” From which the conclusion would be that conferring upon a court in which jury trials do not 'ordinarily obtain, the jurisdiction to try causes in which parties are entitled under the constitution to a jury trial, would not authorize that court to dispose of such causes without a jury trial.
In People v. Waynesville, 88 Ill. 469, the right of parties to a mandamus proceeding instituted in this court to have questions of fact determined by a jury is expressly recognized. It is unnecessary, however, to go outside the opinions which have been filed in this case for authority in support of that right. Upon the issues herein being closed they were certified to the circuit court of Madison county for trial by jury. Upon each of four successive verdicts being certified to' this court the verdict was set aside and an order entered directing that the. questions of fact be again submitted to a jury. When the third verdict was certified to this court, counsel for the relator sought to have the verdict set aside and to have a peremptory writ awarded. In the opinion then filed, which is found in 209 Ill. 461; after stating that the verdict was contrary to-all the facts proved and without support in the evidence, we said (p. 465) : “In such case, where the verdict clearly appears to be unsupported by the evidence, it is the duty of the court to set it aside and to award -a new trial.” And after discussing the insistence'that a peremptory writ should be awarded, it was said: “In the present condition of the record the verdict must be set aside and a new trial granted;” and, as above indicated, the circuit court was then .“directed to submit the issues to another jury.” In reference to that determination it is now said in the majority opinion that the relator had not requested the circuit court to direct a verdict in his favor, and that it was not deemed advisable, in the then existing condition of the record, to set aside the order submitting the issues to the circuit court for trial. It is also pointed out that in the present instance the relator moved the court to direct a verdict in his favor, which was denied. The only difference in the situation of the record as it now stands and as it was when the opinion in the 209th was written, is that here the relator moved for a directed verdict, which he did not do upon the trial reviewed in the 209th. Upon this difference the ingenuity of counsel has riot been able to fourid a distinction which would warrant us in now entering a judgment which we then refused to enter, and no such distinction based on that difference is suggested in the foregoing opinion.
In our judgment the majority proceed on the mistaken theory that the provision conferring original jurisdiction upon this court in mandamus must necessarily be regarded as self-executing. If, as is stated in that opinion, the right to a jury trial, such as is contemplated by the fundamental law, cannot be enjoyed in this proceeding in this court because no method has been provided for summoning a jury and for a trial by jury presided over by us, then the provision giving us jurisdiction cannot be carried out in cases such as this without legislation to make it effective. But the absence or lack of that legislation affords no ground for taking away a right of a litigant guaranteed by another provision of the constitution. If the jurisdiction to try capital cases was conferred upon the probate court by the constitution and that court was left without the means of summoning and empaneling a constitutional jury, it would scarcely be contended that the probate judge could try a man for murder without the intervention of a jury; and yet that is the conclusion to which the logic of the majority opinion irresistibly leads. The right of the respondents to a trial by jury has been five times solemnly recognized by this court by orders entered in this case, and the existence of that right is expressly shown by the words of the opinion in the 209th. To now deny this right because juries have persisted in returning verdicts that were not supported by the evidence is, we think, simply to make a bad matter worse. Even if it were a fact that the judges of the circuit court and the juries who have tried- the issues in this case had willfully disregarded their duties and denied relator his rights, that would afford no reason for this court to disturb a long established practice heretofore followed without question, in order that the alleged wrong visited upon the relator might be forthwith righted. Fixed rules of practice should not be radically altered to meet the seeming emergencies of a particular case, even in the absence of constitutional considerations. No higher duty rests upon this court than to preserve inviolate the constitutional right to trial by jury. In this case respondents seem to have enjoyed a right to a provisional or experimental trial by jury. That is to say: If the jury had found for the relator the respondents would not have been deprived by this court of the right to a jury trial, but inasmuch as the jury found the other way the verdict is set aside and the judgment of this court, which is herei the court of original jurisdiction, is entered against respondents without a verdict to support it.
If the majority regard the juries that can be obtained in Madison county, and the judges who preside in the circuit court in that county, as unfitted by prejudice to try the questions of fact that have been certified to that court, this court possesses the undoubted power to set aside the order sending the issues of fact to the circuit court of Madison county' for trial and to make an order submitting the same issues for trial to the circuit court of any other county in the State.