(dissenting)—The statement that hard cases make bad law was common long before Justice Holmes added that this was also true of great cases. Northern Securities Co. v. United States, 193 U. S. 197, 400, 48 L. Ed. 679, 24 S. Ct. 436, dissenting opinion. This is not a great case, but it is a hard one.
It ought to be possible for an accused person to consent to a trial before eleven jurors. The majority calls attention to some of the advantages of such a rule. Our function, however, is to determine, not what oughi to be possible, but what is possible, under existing constitutional and statutory provisions.
This case is also hard in another respect. Appellants induced the error of which they now complain, and did not urge it as error in the trial court. No rule of law is better established than the rule that a party will not be heard to complain of an error which he induced the trial court to commit. State v. Todd, 145 Wash. 647, 650, 261 Pac. 397. But that rule applies only to errors of law. Assuming that the court here was without authority to proceed with a jury of less than twelve members, it acted in excess of its jurisdiction, and “did much more than commit a mere error of law.” In re Ellern, 23 Wn. (2d) 219, 160 P. (2d) 639.
In the instant case, the claimed error relates to the legality of the tribunal before which the accused was tried. An *740illegal tribunal cannot be made legal by consent. State v. Ellis, 22 Wash. 129, 60 Pac. 136; State v. McNeil, 161 Wash. 221, 296 Pac. 555. Moreover, where the constitutional principle relied upon is that an accused may not waive a particular right, it merely begs the question to say that he may not raise the question because he induced the error. Whenever an accused attempts to waive a constitutional right, he “induces” the error. But appellate courts do not for that reason decline to review on the merits, as amply demonstrated by the numerous decisions of this court dealing with such questions. The rule of invited error has no application where, as here, the question is whether the trial lacked a constitutional foundation.
For the same reasons, I disagree with the view that the error cannot be urged here because it was not urged in the trial court, presumably on the motion for new trial. In Schick v. United States, 195 U. S. 65, 49 L. Ed. 99, 24 S. Ct. 826, the appellant, who had induced the error by waiving a jury in writing, did not even assign this as error on the appeal, or refer to it either in brief or argument. Yet the United States supreme court, on its own motion, considered the question on its merits after calling for briefs on the point.
The constitutional provision in question reads as follows:
“The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto” Washington State Constitution, Art. I, § 21. (Italics mine.)
Let us first examine this provision without reference to the decided cases in this and other jurisdictions. It may be conceded at once that if the provision consisted only of the unitalicized portion, it would state only a constitutional privilege which an accused person would be free to waive. It would then have no more standing than the constitutional right to meet the witnesses against him face to face, which may be waived (Art. I, § 22; State v. Smith, 183 Wash. 136, *74148 P. (2d) 581, 100 A. L. R. 474); or the right to a speedy trial, which may be waived (Art. I, § 22; State v. Miller, 72 Wash. 154, 129 Pac. 1100); or the right to demand a copy of the charge against him, which may be waived (Art. I, § 22; State v. Quinn, 56 Wash. 295, 105 Pac. 818).
But the unitalicized portion of this constitutional provision does not stand alone, and must not be read as if it did. The italicized portion which follows as a part of the same provision, in my opinion, completely negatives the notion that, in this state, the right to trial by jury in criminal cases in a court of record may be waived. The framers of the constitution have there undertaken to state under just what circumstances the legislature may provide for waiving the jury. By application of the rule of express mention and implied exclusion, it seems to me that the legislature is thereby precluded from providing for a waiver in any case not covered by the provision, and that an accused is precluded from waiving a jury in any case where the legislature has failed to provide therefor.
The provision in question does not authorize the legislature to provide for a waiver of a jury in a criminal trial in a court of record. It follows that an accused is without power to waive the jury in such a case. It is not to be questioned that, when the constitution speaks of a right of trial by jury, it refers to a common-law jury of twelve persons. State v. Ellis, supra (overruled by the majority on another point); Patton v. United States, 281 U. S. 276, 74 L. Ed. 854, 50 S. Ct. 253, 70 A. L. R. 263. The conclusion to be drawn is that these accused could not consent to a trial before a jury of eleven members.
It is argued that this italicized provision merely indicates the circumstances under which the legislature may provide for waiving a jury, and does not in any way limit an accused in waiving a jury independent of legislative action. Will this view stand analysis? The provision is not that the legislature may waive the right, but that it may, in certain cases, provide for the waiving of the right by the parties. Is it not clear from this that, where the legislature *742has not beén authorized to provide for the waiving of the right by the accused in a criminal case, it was intended that there could be no waiver? Unless given this construction, what possible purpose does the italicized portion serve? As I see it, if an accused is free to waive the privilege independent of a legislative provision for such waiver, the carefully defined authority conferred upon the legislature is wholly pointless. Neither statutes nor constitutions should be construed in such manner as to render substantial portions meaningless.
Turning now to the decided cases, the majority cites three decisions in support of the proposition that “because an accused cannot be deprived of this right [trial by jury], it does not follow that he cannot waive it.” Analysis will show that none of these decisions holds that where a statement of the right to trial by jury is followed by a provision authorizing the legislature to provide for waiving the right in certain cases, an accused is free to waive the right independent of legislative enactment within the prescribed area of waiver.
The first case cited by the majority is State v. Ellis, supra. 1. Here is what Judge Dunbar actually said in that case:
“It would seem to the writer of this opinion that the first clause of the section, viz., ‘that the right of trial by jury shall remain inviolate,’ was simply intended as a limitation of the right of the legislature to take away the right of trial by jury, and that it did not intend to interfere with the right of the individual to waive such privilege. What construction might be placed upon the further provisions of the same section as indicating the intention of the members of the constitutional convention is not necessary to determine here, for the trouble with the case at bar is that the legislature has not attempted to provide any method by which the guilt or innocence of a defendant can be determined other than by a jury; and it must be conceded that, when the constitution speaks of a right of trial by jury, it refers to a common law jury of twelve men.” (pp. 131-132) (Italics mine.)
It is therefore clear that the decision in the Ellis case did not turn on a construction of the constitutional provision. *743Moreover, Judge Dunbar’s expressions by way of dictum, regarding the right to waive a trial by jury, were limited to a construction of the first clause of the constitutional provision. He specifically declined to express a view as to the effect of the further provisions of the same section, wherein the legislature is given authority to provide for waiver in certain cases.
The other Washington case cited by the majority on this point is In re Ellern, 23 Wn. (2d) 219, 160 P. (2d) 639. It was there held that, under Rem. Rev. Stat., § 6930 [P.P.C. § 641-27], there is a right to trial by jury in insanity proceedings, and where such right is denied, the adjudication may be set aside on a petition to vacate the judgment. In the course of the opinion, it is pointed out that this statute is similar to a territorial statute under which one charged with insanity had a right to trial by jury only if he made demand therefor. The court then called attention to the rule that, with regard to insanity proceedings, a constitutional guaranty that the right to trial by jury shall remain inviolate preserves such right to the extent given by the territorial statute. The “court correctly concluded that, in view of the statutory history, the right to trial by jury in insanity proceedings can be waived and is waived unless a demand is timely made. It is therefore apparent that, in the Ellern case, the question of waiver in a criminal case, where there is no such statutory history, was not involved, discussed, or decided.
The only other case cited by the majority in support of the proposition under discussion is Patton v. United States, 281 U. S. 276, 74 L. Ed. 854, 50 S. Ct. 253. The Patton case, of course, construes Art. Ill, § 2, and the sixth amendment of the Federal constitution. Neither of these Federal constitutional provisions contains more than a simple statement of the right to trial by jury, without any clause purporting to specify under what circumstances the Congress may provide for waiver. It is this essential difference between the constitutions of the United States and of the other states, and our own constitution, which destroys the *744value of decisions from other jurisdictions as precedent in the construction of the Washington constitution.
The majority calls attention to In re Brandon v. Webb, 23 Wn. (2d) 155, 160 P. (2d) 529, holding an accused may waive a jury trial by pleading guilty. It was there held that the purpose of the constitutional provision was to preserve to the accused the right to a trial by jury as it had theretofore existed; and that, under the territorial law, an accused had such right only on issues of fact joined upon an indictment or information. Hence, where the accused enters a plea of guilty, such action dispenses with a trial entirely; there is no question of fact to be determined. The fact that an accused may admit his guilt and so obviate any trial does not, in my opinion, undermine the constitutional right where .guilt is not admitted and a trial must be had. See People v. Lennox, 67 Cal. 113, 7 Pac. 260; Green v. Commonwealth, 12 Allen (Mass.) 155; In re Dawson, 20 Idaho 178, 117 Pac. 696.
As the majority notes, an accused may waive a trial in the county in which the offense is committed. State v. Hardamon, 29 Wn. (2d) 182, 186 P. (2d) 634. This right is provided for in Art. I, § 22, of the constitution, which is not the provision now in question. The majority also calls attention to other constitutional rights which may be waived, such as the right relating to self-incrimination, and the right to counsel. These, too, pertain to provisions of the constitution other than Art. I, § 21, involved in this review. Reliance upon such authorities graphically indicates, in my view, the failure of the majority to come to grips with the particular wording of Art. I, § 21. Nowhere in the majority opinion is there any discussion of the significance to be attached to the italicized portion of Art. I, § 21.
In addition to the constitutional problem, there is the question of whether, even assuming the constitutional right to waive a trial by twelve jurors, there is any provision in law for a tribunal of eleven jurors. In the early case of State v. Ellis, supra, that question was thoroughly considered. In holding that there was no such tribunal provided *745by law, the court discussed and disposed of every argument which has been advanced on this appeal. No such tribunal has since been provided by law.
Many years later, this court reached a similar conclusion with regard to attempted waivers of the entire jury and submission of the question of guilt or innocence to the judge. State v. Karsunky, 197 Wash. 87, 84 P. (2d) 390; State v. McCaw, 198 Wash. 345, 88 P. (2d) 444. In those cases, the constitutional question was not raised and so not passed upon. The legislature then responded to the decisions in the Karsunky and McCaw cases by enacting, in 1951, a statute providing that an accused could waive the entire jury and submit to the court the question of guilt or innocence. RCW 10.01.060 (Rem. Rev. Stat., § 2309). The constitutionality of that statute has never been determined, and in any event, it does not purport to authorize a trial before eleven jurors.
If legislation is not needed to provide the machinery for a waiver of any or all the jury, why did we reverse the convictions in the Karsunky and McCaw cases upon the ground that there was no statute then in effect?
If the legislature has constitutional power to provide for waiver of a twelve-man jury in criminal cases and submission to a jury of less than twelve, it is the legislature which should do so (if it chooses), and not this branch of government. The legislature has not seen fit to do so in the fifty years the Ellis decision has remained unchallenged in our books. In my opinion, that decision is sound and should not be overruled.
I therefore dissent.
Donworth and Weaver, JJ., concur with Hamley, J.