The Maryland constitutional provision with respect to waiver of jury trial in the courts of Baltimore City relates to criminal as well as civil cases.

While no provision is made in the Louisiana constitution for a waiver of the jury, it is provided that in cases where the punishment is not by hard labor the trial shall be by the court without a jury.

Operation of changes in jury system. With respect to the operation of changes in the jury system, a number of letters were written to judges and lawyers in other states, and replies to these letters throw some light upon the problems here under discussion.

In Michigan, Texas and Utah a jury is deemed to be waived in civil cases unless demanded by one of the parties; and in Michigan and Texas this demand must be accompanied by the payment of a fee. This plan seems to have worked well in these states, although the information available indicates that jury trial is demanded in a large number of cases in Utah. In Texas jury trial is demanded in probably not more than one out of four cases.

Ohio by constitutional amendment in 1912 authorized legislation permitting three-fourths verdict, in civil cases, and the three-fourths system established by law, is reported to have given satisfaction. Reports from California are that the three-fourths verdict in civil cases gives general satisfaction, and the same statement may be made as to Utah and Idaho. In Montana the two-thirds verdict in civil cases is reported to give satisfaction, and in Minnesota there seems no desire to alter the plan of a five-sixths verdict after twelve hours deliberation. The only legislation so far enacted in South Dakota with respect to this matter is that of 1893 permitting three-fourths verdicts in minor civil cases; efforts to extend the plan have failed either in the legislature or on a popular referendum, the proposal for a verdict of ten having been defeated upon a popular vote in 1916. In Montana, two-thirds verdicts in criminal cases below the grade of felony have worked satisfactorily, and the same is true of five-sixths verdicts in misdemeanor cases in Idaho.

Suggested changes in criminal jury. Two suggestions have been made which do not involve a very radical departure from the jury system in this state. (1) It has been suggested that the state be permitted to ask for a change of venue in criminal cases such a change upon the application of the state is permitted by the constitutions of Kentucky and South Carolina. (2) It is suggested that the accused be permitted to waive jury trial in felony cases, or at least to waive trial by a jury of twelve when a juror becomes disqualified during the trial.

IX. POWER OF THE COURTS TO DECLARE LAWS
UNCONSTITUTIONAL.

Development of power in Illinois. The Illinois constitution of 1818 imposed few limitations upon legislative power and associated the judges of the supreme court with the governor in the exercise of the veto power over legislation. The judges as members of the council. of revision had power to present objections to a measure before it became law, although the measure might be passed over such objections by a majority of the whole number of members elected to each house. Under the circumstances it was to be expected that few decisions upon the constitutionality of laws would be rendered under the first constitution of Illinois. During the period from 1818 to 1848, there were twenty-nine cases involving the constitutionality of seventeen laws. In seven cases, involving four laws, statutes were held invalid, but only two of the statutes were held invalid upon state constitutional grounds.

The constitution of 1848 materially increased the limitations upon legislative power, and practically recognized by the constitution itself a power in the courts to declare laws unconstitutional. Of the 111 cases in which statutes were contested upon constitutional grounds between 1848 and 1870, much the greater number dealt with constitutional limitations introduced in 1848. Sixty-five of the cases related to local and special legislation. With the increased number of decisions. upon questions of constitutionality, the passing upon such questions by the court came to be a much less solemn and responsible function than before 1848, and in 1870 the supreme court passed upon the constitutionality of statutes in two cases when the question was not necessarily involved.

In the constitutional convention of 1870, the power of the courts to pass upon the constitutionality of legislation was recognized without question, and no action was taken upon a proposal "that the supreme court alone shall have power to decide questions arising upon the constitutionality of any act of the legislature; and that no act of the legislature shall be declared unconstitutional by the supreme court. except upon unanimous concurrence of all the judges thereof."

The action of the convention of 1869-70 indicates a grave distrust of legislative power. Numerous limitations upon the legislature were placed in the constitution of 1870. Detailed provisions against special legislation, limitation as to the form, content and method of enacting measures, and numerous other limitations hedge about the power of the general assembly on every side. The whole attitude of

1 Debates, Constitutional Convention of 1870 p. 321

the convention indicates that this mass of new limitations was to be enforced by the courts.

From 1870 to the end of the June term, 1913, the supreme court passed upon 789 cases involving the constitutionality of statutes and in more than a fourth of these cases statutes were declared invalid. Το a great extent these cases were based upon limitations which first appeared in the constitution of 1870, or upon limitations whose stringency was then increased. For example, between 1870 and 1913, seventy-three cases dealt with the requirements as to titles of acts, twenty-five with technical requirements as to passage of laws, and eighty-seven with special legislation. The number of cases involving constitutional questions has steadily increased, and the cases between 1890 and 1913 outnumbered those between 1818 and 1889. Not only has the total number of cases steadily increased, but there has been an increase in the proportion of cases in which statutes have been declared unconstitutional, and the statutes declared unconstitutional have in recent years been relatively more important than previously.

It is customary now to raise the question of constitutionality as a matter of course in cases which involve new enactments, and in view of the fact that statutes are declared unconstitutional in a number of cases at each term of the supreme court, a declaration of unconstitutionality has necessarily lost the extraordinary and solemn characteristics which it may once have possessed. A function ceases necessarily to be solemn and extraordinary when it is exercised with great frequency. The steadily increasing bulk of cases involving constitutional questions may in great part be explained by (1) the growth of specific limitations upon the general assembly in the constitution itself; (2) the extended use of the "due process of law" limitation, and of the limitation against the enactment of local or special laws granting "any special or exclusive privilege, immunity or franchise whatever", and (3) to the increased persistence with which constitutional objections to statutes have been urged upon the court. It may probably be said of judicial decisions in any field that the extent to which a particular doctrine is applied depends to a large extent upon the persistence of counsel in the argument of cases.

The extended application of "due process of law" and of other broad phrases in the constitution requires a further discussion. The constitution of 1818 and 1848 contained the provision that no one shall be "deprived of his life, liberty or property but by the judgment of his peers or the law of the land." In the constitution of 1870 the now familiar phrase "due process of law" appears, but apparently without any change in the meaning of the constitutional guarantee. The use of this clause, however, has been enormously expanded. Before 1848 there was but one decision (in 1845) based upon this provision, and in that case "due process" was regarded as a limitation upon procedure only. Between 1848 and 1870 there were nine cases (in a majority of which statutes were upheld), and with 1864 began the tendency to employ this limitation as one applying to the substance of statutes, as well as to procedure. Since 1870, and more especially since 1886 the principle

has developed, not only in Illinois, but also in the other states and in the United States supreme court, that a statute deprives of due process of law if it singles out certain persons or classes and imposes upon them burdens not imposed on others in like conditions, or if it seeks to impose regulations regarded by the court as unduly interfering with private rights.

This extended application of due process of law is one which, of course, makes the term impossible of definition, and no courts have sought to define it. The necessary absence of a definite standard as to what may or may not be done under the due process clause has, of course, made difficulty for the legislatures of this and other states. Due process as a limitation upon what the legislature may do is broad and indefinite; due process as a limitation of what procedure is proper under the constitution or statutes has on the whole a fair degree of definiteness. During the period between 1870 and 1913, 115 cases arose on the due process of law clause in Illinois, and of these seventy-four arose between 1900 and 1913.

From the preceding discussion, it may be concluded that (1) the great bulk of increase in the exercise of this power by the courts is to be attributed to increased limitations placed in the constitution itself; (2) that the most important single increase has been due not to an added limitation in the constitution itself, but to the extended application of the "due process of law" clause, and (3) that declaring a statute unconstitutional has now ceased to be a solemn and extraordinary function.

One of the most serious problems which has presented itself with respect to the exercise of this power is that substantially identical clauses (such as the due process of law clause) in the various state constitutions and in the constitution of the United States have been differently construed by different courts. The supreme court of the United States, on the whole, has been more liberal in the construction of “due process of law" than have many of the state courts, and in a number of cases statutes which are "due process of law" under the federal constitution are violative of "due process of law" as construed by the supreme court of Illinois.

The earlier doctrine of the courts was that the question of the constitutionality of a statute should be decided only as an incident to the determination of a bona fide controversy between parties. For a number of years, however, the question of constitutionality has been decided primarily in cases where a person to be affected by a statute seeks an injunction to prevent the enforcement of the statute, or where a person seeks a mandamus to compel action under a statute. It may, of course, be possible to contend that in such cases the rights of the parties are the fundamental issue and the question of constitutionality a mere incident, but as a matter of actual fact, in most cases squarely involving the validity of a statute, the question of constitutionality is the one on trial, even though it is presented in the form of a bona fide controversy. This situation is well recognized by counsel in substantially all of the cases involving the validity of important statutes, and although it is probably true that there are few collusive cases with respect to this

matter, agreed cases to raise the issue of constitutionality are not uncommon in Illinois and in other states.

Ordinarily the question of constitutionality must first be presented to a trial court, although some important cases may be brought originally in the supreme court. The making of the constitutional issue in the trial court has, however, in this country become a rather formal matter, in order that an appeal may be perfected to the supreme court. The appellate courts of this state have no jurisdiction to pass upon questions of constitutionality, and if a question as to the validity of a statute has been raised in the trial court, taking the case to an appellate court waives this ground of objection.3

Proposals with respect to judicial power. Numerous criticcisms have been made of the exercise by the courts of their power to declare laws unconstitutional; and a number of proposals have been made with respect to this matter. Such proposals will be discussed briefly below.

(1) One of the simplest methods of reducing the power of the courts to declare laws unconstitutional is that of reducing the number of state constitutional limitations. It has already been suggested that in Illinois the greater part of the increase in cases involving questions of constitutionality has been due to the introduction of new constitutional limitations. Limitations regarding the procedure in the enactment of legislation and with respect to local and special legislation have been responsible for the annulment of a large proportion of the statutes declared unconstitutional in this state since 1870, and many of the statutes declared unconstitutional on these grounds have been important ones.

The constitution of Illinois provides in detail that various types of local and special legislation shall not be enacted. The constitution also contains a provision that "in all other cases where a general law can be made applicable, no special law shall be enacted." In Illinois, as in substantially all other states, this provision is interpreted by the courts as directed to the judgment of the legislature and not as an enlargement of judicially enforcible limitations.

Some states have adopted a plan with respect to local and special legislation different from that adopted in Illinois. Missouri, in 1875, introduced into its constitution a provision that "in all other cases. where a general law can be made applicable no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined without regard to any legislative assertion on that subject." Similar clauses have been adopted in Minnesota (1892), Alabama (1901), Kansas (1906) and Michigan (1908). In Michigan there is an added provision that no local or

2 See, for example, the case of State ex rel Gullett v McCullough, 254 Ill. 9 (1912). 3 Griveau v South Chicago Ry. Co., 213 Ill. 633 (1905); Indiana Millers Mutual Fire Ins. Co. v People, 170 Ill. 474 (1898).