The majority of this court has, by its opinion, added to the words of the statute "and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action," in effect, the following: "And this same finding that malice is the gist of the action must be included in the judgment in the former case as well as in the latter." The case of Ingalls v. Raklios, 373 Ill. 404, was tried by the court without a jury. We dealt only with the sufficiency of the finding in the judgment, and held that "finding of malice; body execution to issue," did not meet the requirements of the statute. As the statute stands, the jury is given the judicial power to determine by a special finding that malice is the gist of the action, which finding must be included in its verdict. Nothing is said about any finding in a judgment that malice is the gist of the action where the case has been tried before the court and a jury. TheRaklios case did not discuss the situation presented here. This is a partial and imperfect amendment by judicial action. How are lawyers and trial courts to know what kind of a special finding in *Page 381 a verdict and what facts coupled with what reference to the complaint, which certainly must contain the statement of a cause of action which has malice as its gist, would comply with the requirements of the statute and this decision? The plain words of the statute, without any construction, mean that the jury by a special finding in its verdict must say that malice is the gist of the action, and that if the case is tried without a jury the judgment entered must contain such a special finding. Where the meaning of a statute is plain, as is the case here, there is no room for construction. The effect of this opinion is to make the invalid provision valid by the requirement that the judgment in a case tried by a court and jury shall contain the special finding that malice is the gist of the action. No suggestion is made as to how the court can tell that the jury has found facts which disclose that malice is the gist of the action without the jury being required so to find in accordance with the plain meaning of the words of the statute.
This court has held that the constitutional provision that no person shall be imprisoned for debt (section 12, article 2) has no reference to judgments for torts, but applies only to contractual debts. (People v. Walker, 286 Ill. 541; Petition ofBlacklidge, 359 id. 482; Cox v. Rice, 375 id. 357.) For this reason the following taken from the majority opinion is not only inaccurate but misleading: "Laws in derogation of the liberty of a citizen must be strictly construed, and to justify an imprisonment for tort, which is contrary to the general tendency of our times, statutory requirements must be meticulously observed."
For these reasons, I dissent. *Page 382