The following question was certified to this Court by the United States District Court for the Southern District of Alabama:
We assume that the phrasing of the question was intended as a guide and that it was not meant to restrict our consideration only to the constitutionality of Ala. Code 1975, § 6-11-3, but was intended to extend to all portions of Article I ("Structured Damages") of Chapter 11, of Title 6 (§§ 6-11-1 through 6-11-7).
Billy Ray Clark's claim arose out of an "injury done him in his ... person," while operating high pressure cleaning equipment for his employer, Halliburton Industrial Services Division ("Halliburton"). Halliburton had been engaged by Container Corporation of America, Inc. ("Container"), to perform industrial cleaning services at a Container facility. Clark was performing these services at the time he sustained his injury. The jury returned a verdict against Container in the amount of $822,600 in the United States District Court for the Southern District of Alabama, Southern Division. Of the total sum awarded, it is only the amount awarded for lost future wages ($289,800) that is in any way involved in this certified question,
Alabama Code 1975, § 6-11-3, provides:
Article I, § 11, of the Constitution provides:
This is not the only place within the declaration of rights (Art. I, §§ 1-36) that the word "inviolate" is used. In § 36, the following appears:
"Inviolate" is defined in Black's Law Dictionary 826 (6th ed. 1990) as "Intact; not violated; free from substantial impairment."
Insofar as legislative power is concerned, § 11 of the Constitution has never been interpreted by this Court or the Courts of
In Baader v. State, 201 Ala. at 77-78, 77 So. at 371-72, Justice Thomas wrote for this unanimous Court:
Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. at 277 (1956), wrote:
Judge Cates, writing for the Court of Criminal Appeals in Brown v. State, 45 Ala.App. at 393, 231 So.2d at 169, wrote: "All that the Constitution requires of a jury is that it be impartial, duodecimal and unanimous."
It is obvious from the proceedings of the Constitutional Convention of 1901 that the requirements that a jury's verdict be unanimous and that the number of jurors be 12 were set in stone by §§ 11 and 36 and were to remain free from encroachment by any department of government. See Official Proceedings, Constitutional Convention of 1901, Vol. 2, pp. 1677-1727. During the convention, a minority report sought to change what is now § 11 to: "The right of trial by jury as heretofore enjoyed, shall remain inviolate; but in civil actions three-fourths of the jury may render a verdict." This proposal was defeated by 81 votes to 29 votes. The number 12
Official Proceedings, at 1723.
As for impartiality, that ideal, along with the ideal that a jury be composed of competent members, suffered in the debate, for, to support the amendment, there were allegations "that bribery stalks at noon time and sitteth in the courthouse in the evening hour." Id. at 1719. To oppose the amendment, there was the allegation that "[n]ine times out of ten you cannot get over three smart men on the jury on an average in this State. You know that is a fact." Id. at 1704.
Justice Jones, for a unanimous Court, wrote in Gilbreath v. Wallace, 292 Ala. at 271, 292 So.2d at 655, "In Alabama the basic principles which apply to constitutional juries in criminal cases also apply in civil cases."
Query: The Constitution requires a 12-person, impartial jury that unanimously does what?
There is apparent in the Official Proceedings, Constitutional Convention of 1901, supra, an implicit understanding that a jury must function as a factfinder, for why would there be concern about whether the 12 persons were in complete agreement or accord, if it were not on the resolution of the facts necessary to determine guilt or innocence or to determine whether the plaintiff or the defendant prevails?
Section 6.11 of Amendment 328 to the Constitution, which was proclaimed ratified on December 27, 1973 (Proclamation Register No. 3, p. 32), provides:
There is some disagreement among the Justices on this Court as to what it is that the term "[t]hese rules" in the last sentence of § 6.11 does apply (see the per curiam opinion and the dissenting opinion of Houston, J., in Armstrong v. Roger's Outdoor Sports, Inc., 581 So.2d 414
The passage quoted above from Jawad should have been tightened to correctly state the judicial prohibition involved in that case: "There can never be good reasons for attempting to judicially abolish, curtail, or diminish the factfinding function of a jury."
If "[t]o provide that the right of trial by jury shall remain inviolate is to forbid the legislative ... department from ever burdening, disturbing, qualifying, or tampering with this right," (Gilbreath v. Wallace, 292 Ala. at 271, 292 So.2d at 651), can the legislature change the mode of selecting the venire from which jurors are chosen?
In 1901, in each county the county commissioners or members of the board of revenue constituted a board of jury commissioners (Code of Alabama 1897, § 4976); that board selected from male residents of the county over 21 and under 60 years of age the names of such persons not exempt from jury duty "as in their opinion [were] fit and competent to discharge the duties of... petit jurors with honesty, impartiality and intelligence, and [were] esteemed in the community for their integrity, good character, and sound judgment." (Code 1897, § 4982). It was from these names that the petit jurors were selected. There were numerous persons exempted from jury duty (Code 1897, § 4986), including, but not limited to teachers, attorneys, judges, physicians, dentists, ministers, firemen, students, school board members, mailmen, wardens, and county commissioners.
Now, a jury commission from each county (Ala.Code 1975, § 12-16-30) compiles a master list of all the persons in the county who may be called for jury duty (Ala.Code 1975, § 12-16-57); and no citizen can be excluded from jury service on account of race, color, religion, sex, national origin, or economic status (Ala.Code 1975, § 12-16-56). All persons selected for jury service must be selected at random from a fair cross section of the population of the area served by the court (Ala.Code 1975, § 12-16-55). No qualified prospective juror is exempt from jury service. (Ala.Code 1975, § 12-16-62). Sections 12-16-55, -56, -57, and -62 were enacted in 1978, after Amendment 328 was ratified.
In lieu thereof, Ala.Code 1975, §§ 12-16-145 and -146, provide an alternative plan and procedure for qualifying, selecting, drawing, summoning, and empaneling juries. Do these legislative changes burden, disturb, qualify, or tamper with the right to trial by jury? These were enacted after the ratification of the Constitution of 1901.
Whether the change in the composition or selection of potential jurors violates or substantially impairs the right secured by § 11 of the Constitution is not before us; and the mention of this is not to suggest that it does or that it does not.
The general affirmative charge with hypothesis was used in Alabama prior to 1901. Alabama G.S.R.R. v. McAlpine & Co., 80 Ala. 73, 74 (1885); McElroy, The General Affirmative Charge with Hypothesis in Alabama, 1 Ala.L.Rev. 151 (1949). Where the party with the burden of proof presented evidence of each element of his cause of action by uncontradicted testimony, the case was sent to the jury but with a special direction that "if the jury believe the evidence; it must find for the plaintiff." This Court changed this by the last sentence of Rule 50(a), A.R.Civ.P.: "The order of the court granting a motion for a directed verdict is effective without any assent of the jury." (Emphasis added.)
At common law, the verdict of the jury had to be a general verdict, and no judgment could be rendered on a special verdict. Clay v. State, 43 Ala. 350 (1869). By Rule 49(b), A.R.Civ.P., this Court authorized special verdicts. According to the Committee Comments, "Rule 49(b) expressly cures the common law difficulty by express provision."
Whether these changes in the jury's function violate or substantially impair the right secured by § 11 and § 6.11 of Amendment 328 of the Constitution is not before us, and the mention of them is not to suggest that they do or that they do not.
It is obvious that neither the legislature nor the judiciary has considered §§ 11 and 36 of the Constitution as sacrosanct when dealing with certain aspects of trial by jury.
Under Ala.Code 1975, § 6-11-3(3)c.3., "Evidence of the present value of future damages is inadmissible in cases covered by this article, except at a hearing authorized by section 6-11-5, herein."
Alabama Code 1975, § 6-11-5, provides:
Therefore, § 6-11-3(3)c.3. and § 6-11-5 do transfer the function of determining the present value of future compensatory damages from the jury to the trial court. Was this a function of the jury at the time the Constitution of 1901 was ratified?
What are compensatory damages, if not an element of a cause of action? To the bench and bar all elements of a cause of action are essential in the trial of an action; but to a not-so-esoteric group—to us, the people—as parties to litigation, whether damages are awarded and, if awarded, the damages awarded are the essence of the action, the indispensable property of and the reason for bringing and for defending the action.
At common law as it existed in 1819, and in 1901, it was a jury function to assess compensatory damages.
In Wood's Mayne on Damages § 791, at 739 (3rd English and 1st American ed. 1880), the following appears:
We are aware that the United States Supreme Court in Tull v. United States, 481 U.S. 412, 425-26, 107 S.Ct. 1831, 1840, 95 L.Ed.2d 365 (1987), uses language suggesting that a jury is never required to assess any form of damages:
The Chief Justice and six Justices concurred. Justice Scalia, joined by Justice Stevens, dissented on this point "because in my view," wrote Justice Scalia, "the right to trial by jury on whether a civil penalty of unspecified amount is assessable also involves a right to trial by jury on what the amount should be." 481 U.S. at 427, 107 S.Ct. at 1840-41.
We are not dealing with a civil penalty in this case, as the United States Supreme Court was in Tull, but with compensatory damages, the remedy for an injury done to a person and to which the person has a right by § 13 of the Constitution.
At common law, it was a jury function to determine the life expectancy of a plaintiff who had suffered permanent injury. Alabama Mineral R.R. v. Jones, 114 Ala. 519, 21 So. 507 (1897). Mortality tables were admissible, but the tables were one of many factors to be considered by the jury. 114 Ala. at 533, 21 So. at 510-11; Mary Lee Coal & Ry. Co. v. Chambliss, 97 Ala. 171, 11 So. 897 (1892). Subsequently, the legislature adopted statutes concerning mortality tables, Ala.Code 1975, §§ 35-16-3 and 35-16-4. Since the adoption of these statutes, this Court has reiterated that mortality tables are not conclusive evidence of the life expectancy of a particular person. In Louisville & N.R.R. v. Richardson, 285 Ala. 281, 283, 231 So.2d 316 (1970), this Court held:
The legislature, in adopting the mortality tables, did not prescribe the manner in which juries arrive at an amount of damages to compensate an injured plaintiff for his loss of future earnings.
The determination of the amount to which a plaintiff is entitled for his loss of future earnings was a jury question in a case tried to a jury, before the ratification of the Constitution. South & North Ala. R.R. v. McLendon, 63 Ala. 266, 273 (1879). At the time of the ratification of the Constitution, in cases tried to a jury, it was the jury's function to reduce future earnings to present value or present worth. McAdory v. Louisville & N.R.R., 94 Ala. 272, 10 So. 507 (1892).
The general rule regarding present value is aptly stated in 22 Am.Jur.2d Damages § 174, at 156-57 (1988):
22 Am.Jur.2d Damages § 176 at 157, contains the following discussion of the determination of a discount rate:
See Louisville & N.R.R. v. Trammell, 93 Ala. 350, 9 So. 870, 873 (1891) (a nonjury case); McAdory v. Louisville & N.R.R., 94 Ala. 272, 10 So. 507 (1892); Alabama Pattern Jury Instructions: Civil, 1., 11.11 (1974). In Birmingham Ry. Light and Power Co. v. Wright, 153 Ala. 99, 44 So. 1037 (1907), the Court indicated that Trammell and McAdory should be limited to death cases for which compensatory damages were recoverable because "[w]here the injury does not result fatally, the plaintiff will be the beneficiary of the damages recovered, and to allow him the value of his life, which he yet has, is, of course, absurd." 153 Ala. at 108, 44 So. at 1040. We are not awarding the value of life, but the present value of decreased future earnings. We cannot comprehend the statement quoted from Wright, but it cannot properly relate to the function of reducing the award for the decrease in future earning capacity to present value; however, if it does relate to that function, it is wrong and it is overruled to the extent that it does so relate.
The legislature has adopted a discount rate of six percent (6%) to be used in reducing compensation paid under the Alabama workmen's compensation provisions, Code, § 25-5-83, see Ex parte St. Regis Corp., 535 So.2d 160, 162 (Ala.1988). However, the legislature has not adopted a discount rate to be applied in other areas.
Section 35-16-1 authorizes the superintendent of insurance and the superintendent of banks, within 30 days after final adjournment of each regular session of the legislature, to prepare an annuity table showing the present cash value of an annuity of $100 per month, month by month from 2 to 480 months at the following rates: 2, 2½, 3, 3½, 4, 4½, 5, 5½, and 6 percent. The secretary of state causes that table to be published in the bound volume of the acts of the legislature. See 1990 Acts of Alabama, Vol. 2, page 1588. Section 35-16-2 provides that these tables shall be received in all courts of this state as evidence of the facts therein stated, but that "nothing contained in this chapter shall affect the admissibility of other competent evidence when offered in a lawful and proper manner." Therefore, the discount rate to be applied in this case is a
It is apparent that the sentence "The fact-finder shall not reduce any future damages to present value," contained in § 6-11-3 and in § 6-11-5, does take away from the jury a factfinding function (when a jury is the factfinder) that was within the province of the jury at the time of the ratification of the Constitution of 1901.
Do these Code sections violate § 11 of the Constitution? And, insofar as the judiciary is concerned, do § 6-11-3(3)c. and § 6-11-5 violate § 6.11 of Amendment 328 of the Constitution?
The Seventh Amendment to the United States Constitution was ratified approximately 28 years before Alabama's first Constitution was ratified. So, we look to the historical events surrounding the Seventh Amendment for enlightenment as to what was excepted out of the state's general powers of government to "forever remain inviolate" (Article I, § 36, Alabama Constitution of 1901) (Article I, § 30, Alabama Constitution of 1819), insofar as "the right of trial by jury" is concerned.
Alexis de Tocqueville, Democracy in America 293 (1835; P. Bradley, rev. ed. 1945), astutely observed, "The jury is above all, a political institution, and must be regarded in this light in order to be duly appreciated."
The right to a civil jury played a bit part, but a greater part than any other right guaranteed by the Bill of Rights, in the 1787 Constitutional Convention at Philadelphia. The only recorded issue made of the absence of a bill of rights at that convention, that this Court has been able to find, was an objection that the document lacked a guarantee of jury trials in civil cases.
On September 12, 1787, Hugh Williamson of North Carolina raised this objection to the lack of a guarantee of a civil jury trial:
J. Madison, Debates in the Federal Convention, in 2 Records of the Federal Convention of 1787 (M. Farrand ed. 1911) n. 54, at 587-88.
On September 15, 1787, Charles Pickney of South Carolina and Gerry moved to annex to the end of Art. III, § 2, paragraph 3: "And a trial by jury shall be preserved as usual in civil cases." This proposal was defeated. J. Madison, Debates in the Federal Convention, in 2 Records of the Federal Constitution of 1787 at 628.
57 Minn.L.Rev. at 670-71.
However, from a historical approach, it has not been determined what features of a civil jury trial were preserved to parties to civil litigation from the United States and its officers, agents, and employees.
Wolfram, 57 Minn.L.Rev. at 723-25. (Emphasis added.)
When the constitutionality of a duly enacted act of the legislature is challenged, we must remember that all questions of "propriety, wisdom, necessity, utility, and expediency" are exclusively for legislative determination. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944), cert. dismissed, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945). When the constitutionality of a duly enacted act is challenged, the only question for this Court is that of legislative power; and to determine that, we must determine whether the Constitution excepted that power from the power given the legislature.
Each of the Alabama Constitutions, from the Constitution of 1819 (Article I, §§ 28 and 30) to the present Constitution of 1901 (Article I, §§ 11 and 36), has excepted out of the general powers of government, the power to violate the right of trial by jury. What does that right entail? Twelve persons, who are impartial and who unanimously resolve disputed facts, following the instructions on the law to be applied, which are given to them by the trial court. The legislature can change the law, including the law of damages; however, the legislature cannot, just as we have held the judiciary cannot (Jawad v. Granade, supra), impinge upon the factfinding function of the jury.
We do not intend to lead a crusade "to a constitutional holy land"
In this case, Clark had a constitutional right "`to a remedy by due process' for any injury done him, in his ... person." Constitution, § 13. "Remedy" is defined as "[t]he means by which a right is enforced or the violation of a right is ... compensated." Black's Law Dictionary, 1294 (6th ed. 1990). Clark had demanded a jury for the trial of his action; therefore, Clark had a right ("`a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others,' " Black's Law Dictionary, supra) to have the jury determine whether a compensable injury had been done him, in his person; and, if so, to determine the amount necessary to compensate him for that injury.
Therefore, the right that an individual, as a party to civil litigation, has to a trial by jury is protected by § 11 of the Constitution from the legislative, executive, and judicial departments of government and by § 6.11 of Amendment 328 from the judicial department. It is the right to have a jury of 12 impartial people unanimously resolve disputed facts.
Not only does Ala.Code 1975, § 6-11-3, remove from the jury the function of factually determining the amount of a plaintiff's remedy for an injury done to the plaintiff's person, but it also requires all defendants to pay an excessive amount on the first $150,000 of future damages when future damages are assessed. Defendants who are required to pay any future damages (and in the briefs accompanying this certified question there is an unsubstantiated statement that evidence was presented to the Alabama legislature prior to the enactment of § 6-11-3 that awards of future damages in most cases did not exceed $150,000) do not have the initial $150,000 of future damages reduced to present value, either by the jury or by the trial court. Therefore, § 6-11-3, as written, provides a remedy in excess of that due a plaintiff under the common law, as to any future damages not exceeding $150,000. We do not mean to imply that the legislative department cannot by another general act abolish the procedure or rule requiring that all damages for a decrease in future earnings be reduced to present value or even abolish all damages for loss of future earnings, Gasoline Products Co. v. Champlin, supra. That is not before us, for § 6-11-6
Act No. 87-183, Acts of Alabama 1987 (Ala.Code 1975, §§ 6-11-1 through 6-11-7), contains a severability clause (§ 7):
ANSWER TO CERTIFIED QUESTION:
The sentence in § 6-11-1 providing that "The fact-finder shall not reduce any future damages to present value"; all of § 6-11-3; and, consequently, all of § 6-11-4, since it has no operative effect apart from § 6-11-3; and all of § 6-11-5 violate §§ 11 and 13 of the Constitution, when a jury has been demanded, and as applied to the case of Billy Ray Clark and Halliburton Industrial Services Division v. Container Corporation of America, Inc.
We have a real concern about § 6-11-4(4) ("No certificate of judgment shall issue or be recorded against any defendant for that portion of an award of future damages which is structured") on several constitutional grounds; however, that sentence is inoperative without § 6-11-3; therefore, we omit any separate discussion of that sentence.
We also omit any discussion of whether § 6-11-3 violates Article I, § 6, or Article III, § 42, of the Constitution, because such a discussion is not necessary for the resolution of the case before the United States District Court for the Southern District of Alabama.
CERTIFIED QUESTION ANSWERED.
SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur in the result.
MADDOX, J., dissents.
ADAMS, Justice (concurring in the result).
Although I agree that Ala.Code 1975, § 6-11-3, violates the right to a trial by jury, I fundamentally disagree with the premises upon which the principal opinion stands. The opinion purports to hold that § 6-11-3 violates Ala. Const.1901, art. I, § 11, because the statute impairs a jury's factfinding function. However, the opinion appears to stand on at least three distinct propositions, none of which, in my view, is supported by law or logic. Consequently, I write specially to point out what I perceive to be the most serious weaknesses in the analysis of this constitutional issue.
The opinion's analysis of the unconstitutionality of § 6-11-3 begins with what I shall call "Proposition One," which is that "§ 11 of the Constitution has never been interpreted by this Court ... as doing more than restricting the legislature from denying or impairing the fundamental requisites of a jury, which are that the jury be composed of 12 persons, that they be impartial, and that their verdict be unanimous." At 187-188. A second proposition found in the opinion asserts that the second proviso in Amendment 328, § 6.11, "added something" not originally guaranteed by § 11, that is, an express reference to the common law comparable to that contained in U.S. Const. amend. VII. The opinion also appears to rest on a third proposition, which is that Amendment 328, § 6.11, preserves for Alabama litigants constitutional protection for the factfinding function of juries as that function existed at common law. The opinion consequently invites the conclusion that if the factfinding function of the jury is protected by the Constitution of Alabama, then it is protected by Amendment 328, § 6.11, not by § 11.
This Court has never, in a proper holding, narrowly interpreted the scope of § 11 as guaranteeing only (1) impartiality, (2) duodecimality, and (3) unanimity, to the exclusion of the jury's factfinding function as that function existed at common law. The language that gives rise to this proposition
In that case, the defendant in a misdemeanor prosecution attempted to waive his right to a jury trial under a statute that required defendants, in order to preserve that right, to demand a trial by jury within five days of arrest or of the giving of bond. Nevertheless, at the request of the prosecution, which was made "several months after the prosecution had begun," the trial court conducted a jury trial. The defendant contended that his constitutional right to a fair trial was violated by this noncompliance with the statute. This Court, holding that the prosecution's request for a jury trial was not timely, reversed the judgment of the trial court. Although no issue was raised regarding the power of the legislature to provide for a waiver of the right to a trial by jury, the Court preliminarily discussed the subject in general terms. The Court's discussion, which was entirely unnecessary to the disposition of the issue presented, contained the statement that forms the basis of Proposition One.
The one case cited in Baader in support of this dictum was Spivey v. State, 172 Ala. 391, 397, 56 So. 232 (1911). Spivey, however, contains no formula regarding the "fundamental requisites of a jury" such as that which appears in Baader; nor is such a restriction on the scope of constitutional protection fairly inferable from Spivey.
The Baader dictum was once more cited by this Court in Kirk v. State, 247 Ala. 43, 22 So.2d 431 (1945). Immediately following its reference to the language in Baader, however, this Court added the following qualification:
Kirk, 247 Ala. at 45, 22 So.2d at 432 (emphasis added). It is thus clear that an application of the tripartite formula expressed in the Baader dictum was equally unnecessary to the resolution of the issue in Kirk.
In fact, the principal opinion cites no case in which the Baader dictum formed the basis of this Court's holding, nor has my research revealed any. Moreover, the opinion ultimately concedes that the Baader dictum was "underwritten," that is, that it clearly did not describe the totality of protection afforded the role of juries by § 11. Consequently, I must conclude that this Court has never subscribed to the view that § 11 preserved only (1) impartiality, (2) duodecimality, and (3) unanimity, to the exclusion of the jury's traditional factfinding function.
In this connection, the opinion seems to imply that statutes regulating the "qualifying, selecting, drawing, summoning, and empaneling [of] juries" do not offend § 11. At 191. If that is so, it is because those statutes do not impair the jury's truly essential function, which is to resolve disputed issues of fact.
Amendment 328, § 6.11, through its express reference to the common law, afforded Alabama litigants no guarantees that were not already provided by § 11. The principal opinion properly recognizes that the fundamental function of the common law jury was to resolve disputed issues of fact. Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935). Based on its application of Proposition One, however, the opinion attempts to distinguish § 11 from the Seventh Amendment, concluding that, unlike the Seventh Amendment, § 11 did not preserve that factfinding function. Enigmatically, it then likens the two constitutional provisions, stating:
At 195. (Emphasis added.)
In attempting to distinguish the protections afforded under the two provisions, the principal opinion goes seriously awry. "The Seventh Amendment is not materially different from Section 11." Poston v. Gaddis, 335 So.2d 165, 167 (Ala.Civ.App.), cert. denied, 335 So.2d 169 (Ala.1976). Both constitutional provisions preserve the right to trial by jury "as it was at common law." Poston, 335 So.2d at 167. Consequently, issues regarding the scope of § 11 protections have always been resolved by our courts through an analysis of the function of the jury in the same or analogous cases at common law. See, e.g., Ex parte LaFlore, 445 So.2d 932 (Ala.1983) (question of competency to stand trial was for the jury at common law; therefore, accused was guaranteed that right "by § 11 of the Constitution of 1901"); Kelley v. Mashburn, 286 Ala. 7, 236 So.2d 326 (1970) ("Ejectment was known to the common law"; therefore, § 11 preserves right to jury trial in such cases); Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933) (nonjury disbarment proceedings did not violate § 11 because, under English common law, power to disbar was inherent in the judiciary and juries were not employed in such cases); Thomas v. Bibb, 44 Ala. 721, 724 (1870) (right preserved by § 11 extends to "cases in which it was conferred by the common law, to suits which the common law recognized amongst its old and settled proceedings and suits"); Boring v. Williams, 17 Ala. 510, 517 (1850) ("summary remedy" against tax collector for allegedly delinquent collections did not violate right to jury trial where summary remedies in such cases were "the practice from a period long anterior to the adoption of the constitution"); see also Crowe v. State, 485 So.2d 351 at 363 (Ala.Crim.App.1984) ("advisory nature of jury's sentence verdict" did not violate § 11 because English common law juries did not determine criminal sentence and the purpose of § 11 is to "preserve the right to trial by jury as it existed in the English common law").
Moreover, this Court has long acknowledged the common law matrix that produced the guarantees contained in the Declaration of Rights and in § 11 in particular. In Mayor of Mobile v. Stonewall Ins. Co., 53 Ala. 570 (1875), this Court stated: "A state constitution is always interpreted in the light of the common law, and if it be not the first constitution, in the light of its predecessors." Id. at 577 (emphasis added). "The guaranties for the security of property and of personal liberty, found in the bill of rights, are borrowed chiefly from magna charta, and for their interpretation we look to the common law." Id. (emphasis added); see also State v. Alabama Power Co., 254 Ala. 327, 333, 48 So.2d 445, 449 (1950); Crowe v. State, 485 So.2d 351, 363 (Ala.Crim.App.1984) (section 11 "has remained virtually unchanged since the first state constitution was adopted in 1819" and it "draws its meaning from that early history"), rev'd on other grounds, 485 So.2d 373 (Ala.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3284, 91 L.Ed.2d 573 (1986). To suppose that the framers of the Alabama Constitution of 1819 contemplated a role for Alabama juries entirely different from that envisioned by our common law ancestors defies ordinary logic.
If the first two propositions are to represent anything other than unrelated observations,
Indeed, the respect for the sanctity of jury verdicts formed the basis for this Court's decision in Jawad v. Granade, 497 So.2d 471 (Ala.1986). Although Mr. Justice Houston states that Jawad was decided under Amendment 328 as well as § 11, a number of the cases upon which the holding in Jawad rested were decided long before the adoption of Amendment 328. See, e.g., Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938) (refusing to follow the Cobb standard); McEntyre v. First National Bank of Headland, 27 Ala.App. 311, 313, 171 So. 913, 914-15 (1937) ("in exercising the power [to set aside a jury verdict], the court should be careful not to infringe the right of trial by jury, and should bear in mind that it is their exclusive province to... find the facts").
By far, the most puzzling aspect of the principal opinion is its failure to demonstrate the relevance of any of these disjointed propositions to the ultimate conclusion. More specifically, the opinion fails to demonstrate how the second proviso in Amendment 328, § 6.11, which operates as a restriction on the power of the judiciary, restrains the power of the legislature. Indeed, Mr. Justice Houston's analysis appears occasionally to lead away from the conclusion that Amendment 328, § 6.11, restrains the legislature's power. If his analysis does so concede, and if, as the opinion states, § 11 traditionally protected only (1) impartiality, (2) duodecimality, and (3) unanimity, rather than the jury's traditional factfinding function, then how can it be said that § 6-11-3 violates the right to a trial by jury as guaranteed by § 11?
If the statute, under the analysis offered in the principal opinion, does violate § 11, it must be because the protection for the jury's factfinding function, which was "added" in Amendment 328, § 6.11, has somehow become "engrafted" on § 11. Nowhere does the opinion demonstrate how or when this engrafting took place. Its discussion of Amendment 328, therefore, becomes irrelevant and the conclusion of the opinion that § 6-11-3 violates the right to a trial by jury as guaranteed by § 11 is not based on identifiable principles of logic.
In my view, the rationale of the principal opinion is seriously flawed, because it fails to apply a "stand up" § 11 analysis to the challenged legislation. I would hold forthrightly that § 6-11-3 violates the right to a trial by jury as that right is, and has always been, guaranteed by § 11 of the Constitution of Alabama.
MADDOX, Justice (dissenting).
The majority concludes that "[i]t is apparent that the sentence, `The fact-finder shall not reduce any future damages to present value,' contained in § 6-11-3 and in § 6-11-5 does take away from the jury a factfinding function (when a jury is the factfinder) that was within the province of the jury at the time of the ratification of the Constitution of 1901."
In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944), this Court set out the rule that guides courts when reviewing the constitutionality of an act of the legislature:
246 Ala. at 9, 18 So.2d at 814-15. (Emphasis added.)
I cannot agree that § 11 of the Alabama Constitution, which states that the right to trial by jury shall remain inviolate, limits the power of the legislature to deal with future damages for lost wages by providing for the structuring of those damages.
I recognize that juries had been permitted to assess damages for lost wages prior to the adoption of the 1901 Constitution, and I recognize that the framers of our Constitution intended to preserve the right of trial by jury, but I can find no support for the proposition that the right to trial by jury that § 11 declares inviolate applies to anything other than the principles that there must be 12 persons on the jury, that the jury must be impartial, and that the verdict of the jury must be unanimous.
Future damages are at best somewhat speculative, and I cannot believe that the legislature, vested with plenary power, is limited by any provision of the Constitution to deal with the recovery of future damages as it has in the act under review; consequently, I must respectfully dissent.
The proviso in § 6.11 of Amendment 328 added something: "that the right of trial by jury as at common law ... shall be preserved to the parties." (Emphasis added.)
Justice Stone, in Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498, 51 S.Ct. 513, 514, 75 L.Ed. 1188 (1931), construing the Seventh Amendment to the United States Constitution ["In suits at common law ... the right of trial by jury shall be preserved ..."], wrote the following for a unanimous Court in regard to what was encompassed by the Seventh Amendment:
In Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935), the United States Supreme Court held that the preserved substance of the common law right of trial by jury, as distinguished from mere matters of form or procedure, retained
However, this broadening of the language of § 11 by § 6.11 of Amendment 328 appeared in the form of a proviso.
The appropriate office of a proviso is to restrain or modify the enacting clause. Touart v. American Cyanamid Co., 250 Ala. 551, 555, 35 So.2d 484, 486 (1948); Cooper v. State, 28 Ala. App. 422, 425, 187 So. 500, 502 (1939), cert. denied, 237 Ala. 533, 187 So. 503 (1939); 82 C.J.S. Statutes, § 381 at 883 (1953).
The Constitution is subject to the same general rules of construction as are other laws; Alabama State Docks Dep't v. Alabama Public Service Comm'n, 288 Ala. 716, 724, 265 So.2d 135, 143 (1972), "due regard being had to the broader objects and scope of the constitution as a charter of popular government." 16 Am.Jur.2d Constitutional Law, § 91, at 417 (1979).
The enacting clause (§ 6.11) is: