Exline

Bryan, J., concurred.

The third section of the first article of the Constitution provides that “ the right of trial by jury shall be secured to all, and remain inviolate for ever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.”

The fifth chapter of the Act concerning Civil Cases, (page 55, Revised Statutes,) after providing the numerous cases in which a jury shall be deemed waived, adds: “The Court may prescribe by rule what shall be deemed a waiver in other cases.”

The second subdivision of the third section thus quoted is directly in conflict with the third section of the Constitution of California. The Constitution has imposed the power as well as the necessity upon the Legislature, of determining in what cases a jury trial may be waived, which cannot be transferred or delegated to any other department of *113 Government. The words “ prescribed by law,” look to actual legislation upon the subject, and in no just sense can be extended to a permission of the exercise of this power to others.

The right of trial by jury is too sacred in its character to be frittered away or committed to the uncontrolled caprice of every…