On Rehearing. Appellees, in their motion for a rehearing, insist that the opinion of this court is in error in holding that the lunacy statute of 1913 is in violation of section 15, art. 1, of the Constitution of this state, and state four grounds for their contention: First, because lunacy inquiries at the time of the adoption of our present Constitution were not "trials by jury," and the "right of trial by jury" in the sense of the constitutional provision referred to did not exist, and had been neither universally recognized nor established by the statutes of Texas in lunacy inquisitions at the time of the adoption of the present Constitution; second, because no court, as a court, had ever been given, by any Constitution, jurisdiction of lunacy inquisitions before the adoption of our present Constitution, but, on the contrary, before and at the very time of the adoption of our present Constitution, lunacy inquiries under the statute of the state were confined to the Chief Justice or county judge, who was directed to call to his aid an advisory board of 12 men, erroneously called a jury, but not in fact, a jury; third, because "trial by jury," as that term is used in the Constitution providing that "the right of trial by jury shall remain inviolate," had a specific, well-defined, and settled meaning at the time it was incorporated into our Constitution, and meant a trial by a jury of 12 men in a court existing as such, with the judge of that court presiding over it as a court, with power to rule on the admissibility of evidence, control the trial, and set aside the findings or verdict of the jury; fourth, because the state is endowed with the duty of caring for its citizens of unsound mind, and in the exercise of its police powers may prescribe such rules and regulations as it sees proper, without conferring jurisdiction on any of its courts to make such inquiry and call to its assistance any board or commission, whether called a jury or not.
Appellant refers us to a number of cases, but insists with much force of reasoning that the cases of Capital Traction Co. v. Hof, 174 U.S. 1, 19 S. Ct. 580, 43 L. Ed. 873, and Dennee v. McCoy, 4 Ind. T. 233, 69 S.W. 858, are in point, and sustain their contention. The importance of the question involved, the constitutionality of an act of the Legislature, suggests a very careful and critical examination into the cases cited. The two cases cited are cases construing the seventh amendment to the Constitution of the United States, which is as follows:
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law."
Mr. Justice Gray's opinion in Traction Co. v. Hof is quite lengthy, going into the full history of the seventh amendment, and the case is in error to the Court of Appeals of the District of Columbia to review a judgment of that court reversing an order of the Supreme Court of the District and remanding the case with directions to quash a writ of certiorari to a justice of the peace to prevent a civil action to recover damages in the sum of $300 from being tried by a jury before him. It will be noted the case then under investigation was a "suit at common law" and strictly under federal court construction under the amendment. The Dennee v. McCoy Case is likewise a case involving the application of the seventh amendment to the federal Constitution, and was a hearing on appeal from the United States Court for the Southern District of the Indian Territory. The provisions of the federal Constitution with regard to trial by jury have no *Page 377 application to trials or proceedings in state courts, but relate only to proceedings in the courts of the United States, which include the courts of the District of Columbia and the territories. In Walker v. Sauvinet, reported in 92 U.S. 90, 23 L. Ed. 678, Chief Justice Waite said that the states, so far as the seventh amendment to the Constitution of the United States is concerned, are left to regulate trials in their own way. A jury trial in the state courts may not meet the definition of a common-law jury or a trial under federal practice. A jury, under the seventh amendment to the federal Constitution, was a common-law jury, and the trial by jury under the amendment has application only to trials in the federal courts. It seems to us that it follows as a necessary conclusion that the definition of a trial in a "suit" before a common-law jury in a federal court would be somewhat misleading when applied to a trial in many state courts. A common-law jury in a suit was composed of 12 men. Can it be said that because a jury in the justice and county court under the state law and in the district courts, when a less number than 12 is agreed upon, are not a jury, because not composed of the common-law number of 12 men? We believe not. Can it be said that because the pleading in the justice court in this state is oral, except such as is noted on the docket, and no charge is given the jury, but the jury are the judges of both the facts and the law, that such facts destroy the idea in the state practice that the 6 men selected to try a case are not a jury and the hearing not a trial? True, they are not a common-law jury, but we think they are a jury, and have always been so regarded. They must have the qualifications of jurors and be selected in the manner required by the state statute. In lunacy investigations under the statute of 1858, article 5832 of the old law (Paschal's Dig.), where information in writing was given to the presiding justice of the county that a person in his county is a lunatic, or non compos mentis, etc., and the presiding justice was required to place such person under restraint, and "twelve competent jurors of the county to be summoned, who shall be sworn to inquire and a true verdict render, whether such person is of sound mind or not; whereupon, the matter shall be tried, and if the jury shall return a verdict that the person is not of sound mind, and that he should be placed under restraint, the same shall be recorded, and the presiding justice shall thereupon order him to be sent to the lunatic asylum, unless, etc.," providing for the giving of a bond by some friend, it seems clear to us that the statute contemplates a trial of the issue of insanity, and that the 12 men selected having the qualification of jurors under the law shall determine the issue. That is the only hearing accorded the person so charged.
The provisions of the statute as to jury trials in lunacy inquiries was in force at the time of the adoption of the present Constitution in 1876. It will be noted that the above article of the statute provided that the 12 men summoned before whom "the matter shall be tried" shall be competent jurors, should be of the county, should be sworn, should inquire whether the person charged as lunatic is of sound mind or not, shall render a verdict, and upon their verdict the presiding justice shall enter his order or judgment. The statute calls the 12 competent jurors thus summoned and sworn a jury, and the proceedings a trial. We have found no change in the practice or proceedings in lunacy trials until the change in the number of jurors in lunacy inquiries was made in 1879. The former statute fixed the number of jurors at 12. The number of the jurors thus fixed at 12 would not necessarily be a common-law jury; but we think, the statute having fixed the number, it would be a statutory, as distinguished from a common-law jury, though the number constituting the panel be the same. All of the Constitutions of the republic and state of Texas have preserved the right of trial by jury, in the same language, "the right of trial by jury shall remain inviolate." It cannot be said that a person charged with lunacy, under the statute above quoted at the time of the adoption of the Constitution, could be adjudged a lunatic by any other proceeding than that provided in the cited article. The affidavit charging lunacy presented an issue to be tried. The proceeding provided to determine the issue was a trial of the issue. The only method of determining the issue was by 12 competent jurors. Their duties, of inquiry and verdict, were distinct from those of the presiding justice. They were not summoned as referees nor as an advisory board to the court, nor did their duties run in that direction. The character of the court's order depended solely on the verdict rendered. We think it could be well said that, under the law and the practice under the section of the statute cited, when a person was charged with lunacy, that person had the right to have that issue determined by the body of 12 competent jurors. That law and that proceeding were the only ones prevailing and existing in lunacy cases at the time of the adoption of the present Constitution. If it was a right existing at the time of the adoption of the Constitution to have the issue of lunacy determined by a jury, we believe that the right is perpetuated, carried forward — "remains inviolate."
It seems to us that the right of trial by jury guaranteed by section 15, art. 1, of the Constitution does not depend upon the character, name, or duties of the officer whom the law names or appoints as the one to summon the jury in a lunacy inquiry and enter an order or judgment on the jury's finding. It is the right of trial by jury that *Page 378 "remains inviolate." The right of trial by jury is a right preserved to the litigants of the issue then being tried, and while the presiding officer, judge, or court named in the law is a necessary function to the hearing or trial of the issue, his position or relation to the trial is functional and incidental. His relation to the trial and the duties he performs while under the statute a necessary part of the trial or hearing, the part he takes in the hearing is not the part guaranteed, but it is the hearing before the jury and the jury's verdict. We think the Legislature could place the lunacy inquiry before any other court, judge, or officer on whom jurisdiction might properly be conferred as a presiding officer, and the right of jury trial would not, by reason of change of presiding officer, be affected. The constitutional provision does not seem to have in view the, official title or duties of the presiding officer. Justice Gray, in Traction Co. v. Hof, said that a trial by a jury of 12 men before a justice of the peace, having been unknown in England or America before the Declaration of Independence, is not a trial by jury within the meaning of the seventh amendment, and held that a common-law trial by jury in a court of record upon appeal from a judgment of a justice of the peace in a civil action is sufficient to satisfy the constitutional right of trial by jury under the seventh amendment, and that is the material point held in that case. But in lunacy inquisitions in this state, there is no right of appeal, and the person charged with lunacy, unless given the right in the proceedings in the tribunal in which the inquiry is had, could never have extended to him the right to have the issue of lunacy determined by a jury. If the right of trial by jury under the seventh amendment, then under consideration before Justice Gray, must be considered and granted, and if that right was granted in an appeal and was "sufficient to satisfy the constitutional right of trial by jury" under the amendment, it still was a recognition of the right. That eminent jurist did not say what would have been the holding of the Supreme Court if the right of appeal to another court had not been extended; the question was not before the court. Neither did that court pass upon the question, in that case, as to what would have been the ruling if the right of trial by jury in a case before a justice of the peace had been the law and the practice in federal courts before the adoption of the seventh amendment. That court simply followed the rule that where, prior to the Constitution, certain cases were triable without a jury, it was not error to refuse a jury trial. Here both the law and the practice in lunacy cases were fully established at the time of the adoption of section 15, art. 1, of the Constitution. We are of the opinion that, whether or not the jury or the trial provided for in lunacy investigations comes fully up to the definition given of a common-law jury and trial under federal practice, still it is such "right of trial by jury as remain inviolate" within the contemplation of the state Constitution. The provisions of state Constitutions and the court's construing them, so far as we have been able to examine into the authorities, uniformly hold them as guaranteeing the continuance of the right given under a general law unchanged, as it existed either at common law or by statute in the particular state at the time of the adoption of the Constitution. There is an exception if the right is purely local and not general.
We so understand the case of Sporza v. German Savings Bank, a New York case, 192 N.Y. 8, 84 N.E. 406. In that case it was insisted that the verdict of the jury in insanity inquiries was not a matter of right, but that it was resorted to by the chancellor for the purpose of informing the conscience of the court. After quoting from cases to show what the practice in that state formerly was, in the absence, apparently, of statute, the majority members of the court said it was apparent that at the time the provision, to the effect that a trial by jury in all cases in which it has heretofore been used shall remain inviolate, was incorporated into the Constitution of that state, the custom prevailed, on the part of the chancellor, in order to inform his conscience, to require a trial by jury of the question of the insanity of a person, in all cases of doubt, in proceedings taken with reference to his commitment and to the disposal of his property. Thereafter the Legislature passed an act to organize a state lunatic asylum and to provide for its inmates. Among other things, it was provided that no person should be admitted to the asylum except upon an order of a court, based upon a certificate under oath of two physicians, etc.
It is true, as claimed by appellee, that the duty of caring for its citizens of unsound mind is and has been with the state, and that in the exercise of its police powers may prescribe such rules and regulations as may be necessary and proper in the discharge of such duty, and that without conferring jurisdiction on any of its courts to make such inquiry. But where the state in the exercise of that duty has prescribed a method or form of inquiry and determination of the I question of insanity, and that method was to submit the issue to a jury and have the result so determined, and where the state, by constitutional provision thereafter adopted, carries forward and continues the right to have such issue of insanity determined as it formerly was, it seems that the Legislature I may not thereafter destroy that right by prescribing another and different rule or regulation. If we are not in error in concluding that the 12 men nominated in the statute of 1858 to determine the issue of *Page 379 insanity was a jury, and the hearing a trial, it seems to us the right of jury in insanity inquiries would be similar to the right of jury trial in any other character of cases where jury trials are guaranteed; we can see no difference. The chancellor examined the certificate and such other facts as were produced, and made a final order of commitment. The New York Constitution provides, "The trial by jury in all cases in which it has heretofore been used shall remain inviolate forever," and provides for a waiver of jury trial. The majority of the court held that Mrs. Sporza had the right to such a trial, but had waived that right. Two of the members of the court, after reviewing many cases and distinguishing the Sporza Case from those discussed, and after reviewing former Constitutions of that state and showing that the right of trial by jury prevailed prior to the present Constitution, on the suggestion that the constitutional provision, relative to trial by jury, referred to a common-law jury of 12 men, said that the statement was accurate in criminal cases in which the opinions were rendered, and further said:
"I cannot find in it anything which amounts to a denial of the proposition that, if the right to a trial by a jury such as was customarily summoned under a commission de lunatico inquirendo existed before the Constitution, it is not equally preserved by the fundamental law."
It is claimed in appellee's motion that we are in error in remanding appellant to the custody of the sheriff for the reason, as is insisted, that J. A. White, the husband, has the right to her custody, and it being undisputed that she is insane and should be restrained, and that in this proceeding the judgment could not be attacked and the bond of J. A. White set aside. If we are right in the conclusion that the judgment is void not being based on the verdict of a jury, the only condition under the statute on which a judgment adjudging appellant a lunatic could be rendered, it seems to follow that the proceeding in the progress of determining the issue of insanity would rest just where it was after the affidavit placed her before report of the board of physicians, in the custody of the sheriff, awaiting a hearing. The bond, under the statute, is given after the hearing and judgment. No bond is provided by statute before the verdict. If the appellee J. A. White, by reason of his being the husband of appellant, has the right, independently of the statute and bond, to have the custody of appellant, as claimed, why have a trial, verdict, judgment, or bond? We do not so construe the law. Furthermore, by what authority do appellees assume to say that Mrs. White is insane and should be restrained? There is nothing in this record to sustain such an assertion, except the finding of a body which has assumed to so adjudge contrary to her constitutional rights. It was not incumbent upon her in this condition of the record to offer any proof of her sanity. The presumption is that she is sane and entitled to her liberty until the contrary is found and established by competent authority. If we could accept appellees' premise that she is insane and should be restrained, then it might be that her husband could lawfully assert a right to her custody without a bond or any other formality. Appellees seem to lay great stress upon appellant's failure to deny that she is insane and should be restrained, but we can see no necessity for her to do so, when there is nothing in the record to rebut the presumption of sanity which obtains in her favor. When J. A. White filed an affidavit charging appellant with insanity, had a warrant for her arrest issued, and served and she placed in the charge of the sheriff, we are constrained to believe that he lost whatever right of custody of appellant he might have had, and his right thereafter is controlled by the statute in his giving the bond provided. The bond given is a statutory bond, and his right to the custody of appellant would depend upon the statute under which it was given. We think we are not in error in placing appellant in charge of the sheriff.
The motion for rehearing is overruled.