(dissenting). — My view of this case was given in an opinion filed in the first division. Notwithstanding what has since been written by my learned brother who has expressed the judgment of the court in banc, my conclusion remains, with due respect, as announced in the divisional proceedings. So my former opinion, together with the suggestions of the St. Louis circuit judges accompanying it, will be filed along with this for publication in the official report.
But some observations occur in the learned opinion in banc which lead me to add to my former comment on the case.
1. The final judgment of the court places in the hands of the St. Louis jury commissioner the power to select the jury (when a special jury is ordered) and holds that the rule or order of the circuit court undertaking to direct the mode of that selection by lot is illegal and void.
That ruling, it appears to me, does’not give sufficient force to the part of section 29 (R. S. 1889, p. 2169) which declares that the selection of a special jury by the commissioner shall be “according to the order of the court.” If the court sees fit to order a special jury to be selected by the commissioner by drawing names by lot from the list of qualified jurors, the effect *524of the'order is to make the special jury merely one for the trial of the particular case. That is the undoubted effect of the course prescribed by law in some other parts of the state (Laws, 1891, p. 173, sec. 7), and it does not appear to be prohibited by the law applicable to St. Louis.
2. The statute furnishes the sole authority for a special jury. The right to a jury trial, which the constitution preserves, does not include the right to have a special jury as an essential feature of trial by jury at common law. So the rule of court should not be held invalid as infringing any constitutional right of the plaintiffs.
The body of the general common law was formally adopted as part of our jurisprudence in 1816;-but only so far as “not contrary to the laws of this territory.” 1 Terr. Laws, p. 436, eh. 154. Even at that day, jury trial was a cherished Missouri institution. The qualifications of jurors and mode of selection had been subjects of serious attention already.
The law of 1804 granted a trial by “jury of twelve good and lawful men” in criminal prosecutions, and “in all civil cases” if required. 1 Terr. Laws, p. 61, sec. 13. With slight modifications, the grant was repeated in other congressional and territorial acts applicable to the people of the territory now included in the state of Missouri. 1 Terr. Laws, p. 7, sec. 3; p. 89, sec. 1; p. 123, sec. 62; p. 307, sec. 4.
In 1808 an act of Louisiana territory provided an elaborate scheme for the selection of juries, one leading feature of which was that only payers of taxes (upon property rated at $100 or more) should be eligible as jurors. 1 Terr. Laws, p. 198, ch. 60. That property qualification was not only repealed in 1810 by the territorial legislature, but in a later act of congress (1812) for the government of Missouri territory that repeal-*525was clinched hy the following section, the intent of which is by no means obscure:
“Sec. 11. And be it further enacted, That all free male white persons of the age of twenty-one years, who shall have resided one year in the said territory, and are not disqualified by any legal proceeding, shall be qualified to serve as grand or petit jurors in the courts of the said territory; and they shall, until the general assembly thereof shall otherwise direct, be selected in such manner as the said courts shall, respectively, prescribe, so as to be most conducive to an impartial trial, and least burthensome to the inhabitants of the said territory.” 1 Terr. Laws, p. 12, sec. 11.
So the law of Missouri territory stood when the first constitution of the new state proclaimed “that the right of trial by jury shall remain inviolate” (art. 13, sec. 8). The right thus secured was the right of jury trial already enjoyed by the people whose representatives made that declaration. And although the. common law may properly be .considered in determining the nature of some of the historic features of jury trial ' (not covered by local legislation before Missouri had a constitution of her own) the common law qualifications of jurors did not become part of the jury system protected by the constitution, for the very plain reason that the local law had already dealt with, and defined, those qualifications. And as the mode of selecting jurors was also a topic treated by the local law, the common law, as to the right to a special jury, was not adopted as part of the Missouri trial by jury.
In the early days of this court it was called upon to consider what jury trial was meant by the first constitution, in a case wherein a jury had been demanded to try a summary proceeding on motion, depending on disputed facts. It was insisted that a jury trial was *526not sanctioned in such a case by the common law; but the court replied:
“This doctrine would be good in England, and in this state, if it were not for a provision in our constitution, which says, the trial by jury shall remain inviolate; the meaning of which is, that with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men; they must have a good fame, possess integrity and intelligence; they must not be aliens, vagrants, outlaws, nor under conviction of crimes. They must all be under oath when they try a fact or cause; they must all agree in their verdict; and the right to have disputed facts tried by such a jury, and in such a manner is to, remain inviolate.” Bank v. Anderson (1822) 1 Mo. 244.
That opinion was written by Judge McG-iek; to whom tradition imputes the authorship of the already mentioned act of 1816, introducing the common law as part of the law of the territory. Bay, Bench & Bar of Mo., p. 537.
The other judges of the court, at the time of the decision quoted, had both been members of the convention that ordained the first constitution of Missouri. It is likely, therefore, that those pioneers in our law knew, at least as well as any of their successors, the proper meaning of our earliest organic charter on the subject of jury trial; and, in announcing that not the English, but the Missouri, trial by jury was guarantied to our people, they probably made no mistake. Special juries had been known to our law, by name, before the adoption of the first constitution; but they were provided simply for particular cases to avoid a change of venue, and were to be drawn from a different county when an impartial jury could not be had in the county where the court was sitting. 1 Terr. Laws, *527p. 276, sec. 18. But the local law touching the qualifications and selection of jurors applied to all juries.
Bank v. Anderson was later approvingly cited in Vaughn v. Scade (1860) 30 Mo. 600. There is a remark in the latter case, however, that the common law trial by jury was the one adopted in the bill of rights, although the decision also approves Bank v. Anderson which held that it was not so adopted. Judge Scott probably intended to refer to the common law only for those essential features of jury trial that were not touched by Missouri law before the adoption of the first constitution, which was the substance of Judge McGtrk’s ruling in the Anderson case.
But it is not necessary to re-argue the present case at length. My dissent is respectfully recorded to the order for a prohibition.
DIVISION ONE.
OPINION.
Barclay, J.This is an original application for a writ of prohibition to Judge Withrow, one of the judges of the circuit court in the city of St. Louis. The purpose is to prohibit him from enforcing a rule of court in regard to the selection and impanelment of special juries that may be ordered in that court. Both parties to a cause pending in the division (or special term) over which Judge Withrow presides unite in the application for a prohibitory writ.
The facts are admitted.
The object of the action before Judge Withrow is to condemn for railroad purposes a strip of land in St. Louis. The railway company is plaintiff, and the Knapp-Stout & Co. Company is defendant. The defendant applied in due time “for a special jury.” The application was granted, upon a deposit of the required *528sum to meet the expenses thereof. The order further declared:
“And the court doth direct the jury commissioner of the city of St. Louis to draw and furnish to the sheriff of the city of St. Louis the names of 45 good and lawful men, and said sheriff is ordered to summon the persons so named to be and appear in room 3 of this court on Monday, October 14, 1895, at 10 o’clock a. m., then and there to serve as special jurors until discharged by the court.”
Neither the application for the special jury nor the order allowing it contains any specification of qualifications of the jury, by class, trade, occupation, residence, or otherwise.
The case came on for a hearing. The judge announced that the parties would be required to select a trial jury in accordance with rule 37 of the court, a copy of which the official reporter will please print along with this opinion.*
The 45 jurors had been duly summoned in accordance with the order, but both parties moved to vacate it, and to “quash the panel,” because the order had required the jury commissioner to furnish the names of the jurors to the sheriff. On various grounds both parties indicated objections to the rule mentioned, and to its enforcement in the condemnation case. After overruling the objections, - the judge adjourned the trial to a future day in order to allow the parties time to have the correctness of his action reviewed in the present proceeding, which was promptly brought.
The defendant judge, in response to the rule to show cause, after admitting the facts set forth in the application for a prohibition, made further return as follows:
*529“That said rale was unanimously adopted by the judges of said court, in general term, by authority of section 27, art. 6, of the constitution of Missouri, authorizing them to make' rales, and of section 29 of article 21, of the appendix to the Revised Statutes of 1889, directing that special juries shall be selected by the jury commissioner in the manner directed by the court, which provision of the statute is found on page 2160, Rev. St. 1889: that it was formulated and adopted by said judges as the result of their long experience in the practical operation of the special jury law applicable to the Eighth judicial circuit: that the same is a valid exercise of judicial power under the constitution and laws of this state, and is binding upon him, and he deems it to be his duty to enforce the same unless prohibited therefrom by this honorable court.”
In this state of the record, the case here has been argued by the plaintiffs, and submitted for decision, as upon an application to make the rule absolute.
The seven circuit judges of St. Louis, including Judge Withrow, have submitted printed suggestions indicating the grounds on which they saw proper to adopt rule 37. These suggestions will also be printed in reporting the case.* They present many practical reasons for the course taken by the judges.
1. Neither party questions the propriety of the use of prohibition to reach a prompt decision upon the validity of the rule of court. But that fact does not warrant us in ignoring all inquiry as to our jurisdiction to entertain the proceeding.
It is evident that either party to the case before Judge Withrow might except to the court’s action in regard to the jury, let that cause go to judgment, and *530thereafter review the ruling by appeal or writ of error. But, on the other hand, a decision as to the correctness of the circuit ruling is said to involve a decision upon the power and authority of the court to proceed as indicated by the rule in dispute, and hence of its lawful authority to enforce the rule. The petitioners here insist that the circuit • court has no authority to require the cause to be tried in the manner indicated by its orders and rulings already made.
Prohibition, undoubtedly, is applicable, legitimately, as well to keep a court within the orbit of its power in dealing with some phase of a case, as to prevent its taking cognizance of an action or proceeding which the court has no power to entertain at all. State v. Ridgell (1831) 2 Bailey 560; Appo v. People (1860) 20 N. Y. 531. Especially may the writ be used for the former purpose by a court invested with “general superintending control” over the circuit courts, as is the supreme court, according to our fundamental law. Const. 1875, art. 6, sec. 3.
A question of jurisdiction in' respect of an incidental matter of procedure in a pending cause does not, ordinarily, form a basis for demanding, as matter of right, a writ of prohibition. If the court of which that writ is asked is of opinion that the remedy by appeal or writ of error is ample and adequate to correct an erroneous ruling on such a question, it may decline to interfere during the pendency of the original litigation. But if the mooted question involves an issue of jurisdiction in the trial court to. act in the particular matter complained of, the superintending court has discretionary power to award the writ of prohibition to keep the court of first instance within the confines of its authority, where the circumstances justify the'call for that remedy. In cases of the kind just described, the use of prohibition is truly discretionary, *531when appeal or error would be also ultimately available.
The recent statute regulating proceedings in prohibition (Laws 1895, p. 95) does not change in this respect the preexisting law as to the proper occasions for the awarding of that writ. It merely undertakes to prescribe certain rules of procedure to obtain it.
We shall not, however, pause further to inquire into the applicability of the remedy in this instance inasmuch as we are of opinion that no prohibition should be granted on the merits. We are not entirely satisfied that it should be denied on the preliminary issue as to the appropriateness of the relief sought; so we have looked into the substance of the controversy.
2. The chief complaint of plaintiffs in the case at bar is that the order by Judge Withrow did not direct any selection of the jurors, either by the jury commissioner or by the sheriff, or point out any qualifications which the special jurors should possess. But plaintiffs also challenge the power of the court to require the panel for the case to be chosen in accordance with the thirty-seventh rule of the circuit court of the city of St. Louis.
The ordinary method of selecting jurors for service in St. Louis is pointed out by the law of 1879. Rev. St. 1889, p. 2160, art. 21. That statute has been since amended in some particulars which need not be specially noted, but one amendment is as follows:
“In every city in the state of Missouri having over one hundred thousand inhabitants, all courts of record in which juries are required shall have power, upon the application of either party, to order a special jury for the trial of any cause, if the application be made at least three days before the trial, and when ordered, the jury commissioner, as he maybe directed by the court, shall select and furnish to the proper officer of said courts the names of the persons to be summoned for *532such special jury, and said officer shall summon them according to the order of the court, and make out and deliver to each party, or his attorney, a panel of the jury so summoned; but the costs of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the costs of the special jury shall be taxed as . other costs against the losing party. The provisions contained in sections 17, 18, 19, 20, 21, 23, 24 and 25’ of this act, in relation to the summoning and service of common jurors and to the duties and liabilities of persons in said sections respectively mentioned, and to the penalties in said sections respectively provided for in respect to common juries, shall, in like manner, be construed to apply also to the summoning and service of special juries, as by this section provided for.” Laws 1885, p. 74; R. S. 1889, p. 2169, sec. 29.
The general provisions on this topic in the last revision of the statutes (1889) are these:
“Sec. 6089. Special venire — how obtained and paid. — Either party to a cause pending in the circuit court, or court of common pleas or criminal court of any county or city, and triable by a jury, shall be entitled, as of course, to an order for special venire on motion made therefor, three days before that on which the case is set for trial; but the cost of such special jury shall be paid by the party so applying, irrespective of the result, unless the judge presiding at the trial shall, at the close thereof, or within two days thereafter, certify that the case was one for the trial of which a special jury should have been ordered, in which case the costs of the special jury shall be taxed as other costs against the losing party. This section shall apply to cities having over three hundred thou*533sand inhabitants, as fully as'to all other parts of the state.”
It will not be needful in this case to consider any clash there may be between the terms of this section and of the act of 1885 quoted.
Turning, now, to the law regulating the circuit court in the city of St. Louis, we note that the present court was organized under a special statute of 1865 (Laws 1865-66, pp. 70-76; E. S. 1889, p. 2145), which has since been occasionally amended.
But in the original act of 1865 occurs the following passage, which has never been altered or repealed:
“In addition to the ordinary power of making rules conferred by the general law, the court may make all rules which its peculiar organization may, in its judgment, require, different from the ordinary course of practice, and necessary to facilitate the transaction of business therein. But all rules for the government of the court at special term shall be the same before each of the judges at such term.” Laws 1865-66, p. 73, see. 14; E. S. 1889, p. 2147, sec. 11.
In State ex rel. v. Smith (1869) 44 Mo. 112, the supreme court, in a unanimous opinion, by Judge Wag-nek, held valid a rule of the St. Louis circuit court requiring bills of exceptions to be submitted there within five days, instead of within the term, as then allowed by the existing statute of the state.
The same view was taken of another rule of that court in regard to the mode and manner of applying for continuances (Frederick v. Rice (1870) 46 Mo. 24), and again in respect of the time for objecting to the form of questions in depositions (Fox v. Webster, 1870, 46 Mo. 181).
The same opinion of this power to make rules was also expressed by the court of appeals in State ex rel. v. *534Boyle (1877) 3 Mo. App. 603; State ex rel. v. Wickham, 3 Mo. App. 604; and State ex rel. v. Wickham (1878) 5 Mo. App. 301.
The supreme court decisions already cited were rendered and published, and hence well known to the public, long before the adoption of the constitution of 1875. In that instrument we find the following language in regard to the St. Louis circuit court:
“Sec. 27. Circuit Court of St. Louis County, etc. The circuit court of St. Louis county shall be composed of five judges, and such additional number as the general assembly may from time to time provide. Each of said judges shall sit separately for the trial of causes and the transaction of business in special term. The judges of said circuit court may sit in general term, for the purpose of making rules of court, and for the transaction of such other business as may be provided by law, at such time as they may determine, but shall have no power to review any order, decision or proceeding of the court in special term.”
This provision of the organic law is strongly confirmatory of the power already conceded to that circuit court by the statute and by the supreme court, in regard to declaring rules of practice.
There are many reasons for the grant and exercise-of such authority, growing out of the peculiar formation and duties of the court, and of the needs of the people whom it chiefly serves in administering the law of the state.
The statutes and decisions already cited will suggest many such reasons to the careful reader, and more could be pointed out by reference to other statutes, imposing peculiar powers and duties on that court.
But, whatever the reasons therefor, “the power exists,” as Judge Wa&nek said, in one of the cases *535above cited, and the constitution has expressly confirmed the grant.
The power, however, relates only to modes of procedure, and is limited in its application to cases wherein a rule of court might fairly be held to have a legitimate bearing towards facilitating the business of the court. Even so broad a power to make rules of practice could not justly or reasonably be held applicable to deprive a suitor in that court of any right conferred by the substantive, positive law of the state.
The limitations of the power need not be further discussed at this time.
Rule 37 is not in conflict with any law touching the mode of impaneling the jury. It conforms to the statute (section 6081) allowing each party to the action to challenge peremptorily three jurors, and it recognizes fully the statutory right of challenges for cause (section 6083). In matters of mere detail, it prescribes the mode of proceeding to bring the final jury into the box, but in so doing it does not clash with any command of the written law, and we think that it can not justly be held to go beyond the proper range of the power of the court to regulate its procedure.
We therefore hold that it is valid.
3. But, beyond the issue as to the mode of selecting the panel, by means of the legal machinery described in rule 37, lies the further inquiry as to the power of the court to order a special venire “of 45 good and lawful men,” without other designation of qualifications. This power plaintiffs deny. Rule 37 does not touch this point. It opens with the words: “When a special jury is ordered,” etc. It would be entirely practical, under that rule, and under the system of selecting jurors in St. Louis, established by the law of 1879, for the court to order, in a particular case, a jury of mechanics, bankers, merchants, or archi*536tects, and have their names drawn by lot by the jury commissioner. We do not mean, at this time, to imply whether such an order would be correct, for no such question is in judgment. But the rule of court quoted would not prevent the execution of such an order.
Under a former law regulating juries in St. Louis, before the separation of the city and county, a method of procedure was pointed out for promptly drawing jurors, the principle of which could be readily applied to the selection of a special jury, designated by occupation or residence, though drawn from the wheel by lot in the usual way. Laws 1857, p. 487, sec. 3.
In the case in view in the trial court there was no order for that sort of a special jury. The call was merely a special one, for 45 jurors, in the particular case, and we are expected to decide whether the court had authority to make such an order.
Erom an early date, in Missouri, there has been general legislation authorizing the use of special juries.
As early as 1845 the following section appeared in the statutes, slightly changing the law of 1835 on the same topic (R. S. 1835 [2 Ed.], p. 343, sec. 14).
“ Sec. 14. All courts before whom juries are required, have the power to order a special jury of eighteen, for the trial of any civil cause, and, when ordered, the sheriff shall summon them according to the order of the court, and make out and deliver to each party, or his attorney, a panel of the jury so summoned.” R. S. 1845, p. 628, sec. 14. .
In the revision of 1855, the number of the special jury was increased to 24, and the section last quoted was substantially repeated, with that change. R. S. 1855, p. 912, see. 24.
By the revision of 1865, the opening lines of the section were amended so as to' read thus:
*537“All courts of record in which juries are required shall have the power to order a special jury of twenty-four,” etc. The rest of the section was retained as last above written. R. S. 1865, p. 599, see. 23.
In the statutes of 1879 (section 2802) was a section in all material respects the same as section 6089 of the revision of 1889, already quoted. In these revisions no requirement is found as to the number of a special jury, further than may be inferred from general remarks committing the subject or number of jurors to the discretion of the court. R. S. 1889, secs. 6084, 6087.
One of the old local laws regulating the selection of juries in St. Louis and in a few other counties refers to special juries as proper in certain circumstances. Laws 1850-51, p. 228, sec. 7.
In several reported cases in the supreme court, questions have arisen involving the powers and duties of the trial courts in regard to special juries.
In Fine v. Schools (1860) 30 Mo. 166, the St. Louis circuit court ordered a special venire for a jury to be summoned outside the city limits, and the order was sustained. That ruling was • afterward approved in Rose v. St. Charles (1872) 49 Mo. 509.
In Union Sav. Ass’n v. Edwards (1871) 47 Mo. 448, the supreme court was called upon to consider an exception to a special jury of “bankers, merchants, and manufacturers” (as recited in the record of the cause, though the precise terms of the order do not appear in the opinion). After referring to the statutory power authorizing an order for a special jury, to be summoned “ according to the order of the court,” Judge Wagnek, on behalf of all the judges, declared: “The special panel may be ordered in the discretion of the court.”
It is noteworthy, in this connection, that the law *538of 1885, already quoted, requires special juries in St. Louis to be selected and summoned by the jury commissioner and sheriff, according to the direction or order of the court. Do not those provisions imply that the court itself is invested with the discretion to determine what sort of special jury shall be summoned]
At no time in the history of the state have the trial courts in St. Louis been commanded, by any statute we have been able to discover, to direct the impanelÍment as special jurors of any particular class or kind of citizens from among those liable to general jury duty; nor have those courts been adjudged by any decision to be bound to order such a special jury. That subject has, so far, been left entirely to the judgment and discretion of the trial judge, as the cases above cited indicate.
The mode of selecting special juries, in vogue in England during the last century, is thus described by the great commentator on the English law:
“ Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholders’ book; and the officer is to take indifferently forty-eight of the principal freeholders in the presence of the attorneys on both sides; who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel.” 3 Bl. Com., *357.
It should be observed that such juries were ordered, under -the common law system, not only on account of the difficulty of the cause, but also, in some instances, *539to secure impartiality in the selection of the jury, irrespective of the nature of the action. That is to say, they were ordered, under that system, at the discretion of the court.
The English law of a more recent period prescribes, with considerable particularity, the qualifications for special jurors, and provides for their selection by lot, unless the court, as it may, shall direct a different course. Juries Act 1870 (33 & 34 Vict.) 77, secs. 6, 17.
In North Carolina, where such jurors may be selected by lot, that mode of choice has been commended as preferable to that of committing the matter to the choice of an executive officer of the court. State v. Brogden (1892) 111 N. C. 656, 16 S. E. Rep. 170; State v. Whitson (1892) 111 N. C. 695, 16 S. E. Rep. 332. In Wisconsin, the designation of a jury by the trial court itself was held a constitutional application of judicial power over the subject of juries, in Perry v. State (1859) 9 Wis. 19. While in our own state the naming of two jurors of such a panel by the judge himself was held a proper exercise of authority in Barr v. City of Kansas (1894) 121 Mo. 22, 25 S. W. Rep. 562. In the last cited case it was also ruled that, in Kansas City, “special juries should be drawn from the wheel the same as juries ordered to serve generally for the term or some other stated period of time.”
No law of this state has been pointed out which expressly or impliedly requires the court to order a special jury “of more than'ordinary intelligence,” or “of business men,” or of any special class, at the instance of any party who chooses to apply for a special venire. It can not be possible, nor does the language of any designated law suggest, that any party to the most trivial suit may, by paying in advance certain costs, secure an “extra good” jury. Section 6089 simply *540purports to confer the right, “as of course, to an order for a special venire,” on certain terms. And the law of 1885 quoted commands that, when a special jury is ordered, “the jury commissioner, as he may be directed by the court, shall select and furnish to the proper officer of said courts the names” of the special jury, who are then to be summoned "according to the order of the court,” etc. R. S. 1889, p. 2169.
Granted that the word “select ” is used to describe the action of the jury commissioner. It must also be remembered that the section from which we have just quoted is but part of a chapter or article regulating the selection of juries in large cities, including St. Louis. The rest of the law on that topic must be considered in attempting to reach a correct interpretation of the word “select” in the place where it is found in the act of 1885. All statutes on a given subject should be kept in view in interpreting any portion of them. The jury commissioner, in ascertaining the names of an ordinary jury, is not absolutely bound to place on any jury list every name drawn therefor from the wheel. If, for instance, it appears that he has drawn the names of persons whom the jury register shows to be dead, or to have removed permanently from the city, after their names were placed in the wheel, the commissioner may draw additional names to supply the deficiency. R. S. 1889, p. 2165, sec.16.
Furthermore, the language of the law generally, in regard to juries, plainly shows that the legislature has often used the word “select,” in connection with that subject, so as to include as well the idea of drawing persons by lot for a panel, as of the choosing of persons to be so drawn. The “selection of juries,” within the plain intent of our statute law, is a term frequently applied indifferently and broadly to all the steps pre*541scribed to obtain the final panel that hears a case. R. S. 1889, secs. 6059, 6073, and page 2169, sec. 27.
But, whatever doubt there be, springing from a strictly etymological consideration of the word “select,” we think, should vanish, upon weighing the force of the context with which the word appears in the law of 1885 before us. The special jury is to be “selected” by the commissioner “as he may be directed by the court.”
The court may order a jury to be “selected” by the jury commissioner, by process of drawing, just as it may order a jury to be summoned by the sheriff without the intervention of the commissioner at all, under section 16, page 2165, Revised Statutes 1889.
Cases may be supposed wherein the commissioner might have to exercise a limited power of selection' in drawing the special jury; for example, where the court’s order called for a jury of men of named occupations, or residing within (or without) certain limits of territory.
But the power of such selection is expressly confined within the limits marked by the order of the trial court, to which is thus committed the authority to determine what sort of special jury shall be “selected” and summoned. The commissioner is the hand to execute the order of the court. We consider that the statute does not design to vest in him a discretionary power of selecting special jurors, independent of the directions the court may give.
The case at the bar of Judge Withrow’s court is a condemnation proceeding, in which the valuation of real estate is, presumably, the only issue involved. Can it be justly said that a court abuses its discretion, in any view of the subject, by refusing a special jury of extraordinary qualifications to try a cause of that nature? Within the meaning of the present law, we *542regard a special jury as one summoned to try a particular case, and nothing more, and we hold that it is within the discretionary power of' the court ordering the same to determine whether any other than general directions to summon a panel for the special case should be given. (Compare 12 Am. & Eng. Enc. Law, 320.) As the court, in this instance, merely called for 45 good and lawful men, it is not necessary to discuss the effect or validity of any other order for a jury that might have been entered.
We consider that the hind of jury to be summoned in the condemnation case was a matter within the sound discretion of the trial judge, and we discover no abuse of his discretion in ordering a special jury of good and lawful men, and then in following the terms of rule 37 in the manner he saw fit to do.
In our opinion, the rule for a prohibition should be discharged, and a judgment for the defendant entered.
Bkace, C. J., and Robinson, J., concur. Maceaelane, J., dissents.But we all agree to transfer the cause at once to court in banc, in order to expedite a final decision.
SUGGESTIONS OE THE SEVEN CIKCUIT JUDGES OE ST. LOUIS.
“Article 21 of the appendix to the Revised Statutes of 1889 provides a jury system for cities having over one hundred thousand inhabitants, which is different from the jury system for the rest of the state. In addition to the qualifications prescribed by section 6060, Revised Statutes 1889 jurors for service in the cities embraced within the provisions of said article 21 are, by the terms of section 9 of that article, required to possess other important qualifications.
*543“The act of the general assembly which was the original of said article 21, and which was passed in 1879, was conceived by the St. Louis Bar Association, and drafted by an able committee of that association, of which Henry Hitchcock, Esq., was chairman, and was designed to have especial application to the' city of St. Louis, and in view of the peculiar organization of the circuit court of the city of St. Louis. Under the provisions of that article 21, a jury list has recently been completed for the city of St. Louis in the following manner:
“The jury commissioner, with the approval of the circuit court, appointed about fifty deputies to canvass the city to collect the names of all persons eligible to jury service. These deputies were chosen mainly from young members of the St. Louis bar who, on account of their intelligence and knowledge of the requirements, were considered best adapted to that work. After a careful and thorough canvass of the city, they returned into the jury commissioner’s office the names of all persons found possessing the qualifications prescribed by said section 9 of said article 21. With each name so returned was a memorandum of information, concerning the individual, such as would enable the jury commissioner to judge of his qualifications. This information was returned by the canvassers upon a prescribed form, and was verified or corrected by sending out different canvassers over the same route, and comparing their reports. When the work of the canvassers was ended, and the jury commissioner had reviewed the returns, it was found that there were 30,358 men in the city possessing the qualifications prescribed in said section 9, article 21, and liable to jury service. The names of these 30,358 men were enrolled in the books, and now compose the jury list of St. Louis. Estimating the population of St. Louis at five hundred *544thousand, there should be from ninety thousand to one hundred thousand men possessing the qualifications prescribed by section 6060, Revised Statutes, 1889.
“It will thus be observed that the list of names selected for jury service does not embrace all the adult male inhabitants of St. Louis, nor all of those who would be qualified jurors under the general statute (section 6060, R. S. 1889), but only about one third of the latter, and that third selected with as much care as could be observed by an intelligent corps of canvassers and the long experience of the jury commissioner. It is, therefore, a fact, that the list from which all jurors, both regular and special, are to be drawn, is itself a carefully selected list.
“After the jury list had been made up as above stated, the judges of the circuit court gave very careful consideration to the question as to what directions should be given to the jury commissioner, as required by section 29 of said article 21 of the appendix, as to the manner in which special jurors should be selected. Theretofore no directions had been given to the jury commissioners on that subject, and the practice was for the jury commissioner, when an order for a special jury reached him, to select from the jury list whomsoever he saw fit for service in the particular ease. The judges of the circuit court became satisfied, after a long experience in the practical operation of that system, that it was not the one best calculated to insure the fair administration of justice. This criticism applies, not to the jury commissioner, but to the system. And the judges, in general term, concluded that a uniform system should be adopted, and that the duty of devising and adopting such a system was devolved upon them by the provisions of the above mentioned section 29, article 21, and that the method by which the system, when devised, should be adopted, was through the rule-*545making power conferred on the general term in section . 27, article 6, of the constitution of Missouri, and section 11, article 17, of the appendix (E. S. 1889).
“Therefore, in the light of what is here stated, and in obedience to what they conceived to be their duty under the provisions of the law above cited, said judges, in general term, after a long discussion, unanimously adopted the rule concerning which complaint is made by the relators in this cause.
“James E. Withrow,
“Jacob Klein, ■
“Daniel Dillon,
“John M. Wood,
“L. B. Valliant,
“Thos. A. Eussell,
“Pembrook E. Flitcraet.”
See pp. 504,505, ante.
See. p. 542, post.