21 Iowa 153 | Iowa | 1866
Lead Opinion
It is first insisted that the County Court should have dismissed the .proceeding on application, for want of jurisdiction. Under this head, according to the motion, filed in the County Court, it was there claimed that the published notice to the owner was void for want of revenue stamps; that it was not published the length of time required, and generally, that there was no sufficiént notice.
The difficulty and importance of the question thus raised is readily appreciated. And yet for this State, it can hardly, as we shall see, be regarded as an open one. Particularly is this true under the facts of this case. For as we understand the record, such a jury was not claimed in the District Court. If not, Bryan v. The State of Iowa, 4 Iowa, 349, is in point and decisive of the question.
But as to the very question made by counsel, it seems to us that the action of the District Court is sustained by Baurose v. The State of Iowa, 1 Iowa, 374, and that following it, the statute under consideration is clearly relieved of any constitutional objection. The doctrine of that case is, that if in the inferior tribunal a party has a trial before the constitutional jury provided for those courts, though of less than twelve men, he cannot, as a matter of right, claim, in the face of the statute, a second trial on the merits in the District Court.
Under the general statute, section 267, the defendant might have appealed from the order or decision of the County Court. On such appeal he would clearly have been entitled to a hearing, upon the merits. Instead of doing this, .however, he adopted the course provided in section 1067. In other words he asked a review of his case under a statute which points out the duty of the District Court in such proceeding, and whatever might have been his other remedies, he must be held to the remedy ’selected. And it is certainly competent, where the right to appeal remains unaffected, for the legislature to provide an additional remedy, and to limit and specify the terms and conditions upon which it may be enjoyed.
The special remedy on appeal in this class of cases may be assimilated to a hearing under the writ of certiorari, and the rights of the parties are not very unlike. And yet, under that writ, the party cannot claim a second hearing or a trial on the merits as a matter of right. Wright v. Phillips, 2 G. Greene, 191; Davis v. Curtis, Id., 575. And see Runner et al. v. City of Keokuk, 11 Iowa, 543.
Affirmed.
Dissenting Opinion
No provision 'is made for challenging any of the men selected by. the county judge, no mode of trial is provided.
The bill of exceptions taken in the District Court, recites, “ that this matter came up for hearing before the court, the defendant Layman claiming that he was entitled to a new assessment of the damages, and upon this the court held that it must, in the first instance, inspect the papers in the cause returned by the County Court, and from them determine whether or not defendant is entitled to a. new assessment of damages in this (District) court, and therefore orders the judgment of the court below to be affirmed,” to which exceptions were duly taken by the defendant.
The only question I propose to discuss is, was the defendant entitled, as a matter of right, to a jury to assess his damages in the District Court? It is my decided opinion that he was'so entitled, and that the judgment of the District Court, denying that right, should for that reason be reversed.
The taking of private property, without the consent of the owner, is the exercise of one of the highest powers of government. It has been much abiised by the great powers which have been conferred upon municipal corporations, allowing them to judge of the necessity, and their citizens to act by a commission from the city council, or some subordinate, magistrate or court, as a jury or body to fix the amount of compensation.
To prevent such abuses, and to give proper security and safeguards to the property owner, it was very wisely pro
By these provisions the right to an assessment of his damages by a jury, is secured by the Constitution to the defendant.
No assessment of them has been made by a jury unless the three men appointed by the County Court are to be regarded as a jury. I do not so regard them.
The right to a jury in respect to these damages is placed by the Constitution upon the same ground as the right to a jury in a case involving the liberty of a citizen. Suppose a statute provided that persons accused of a criminal offense triable in an inferior court, should be tried by three disinterested men selected by the magistrate without the opportunity to challenge. Would this be preserving inviolate the right of trial by jury ? I think not. So in this case, the three men selected by the County Court are not a jury in the sense of the Bill of Eights. §§ 9 and 18, supra.
If this be so, then the defendant had an absolute right to a jury trial in the District Court on the question of the amount of his damages.
When he applied for it the court could have granted it and should have done so.
I do not think he loses his right to a jury trial in the District Court because he transferred the proceedings under section 1067, instead of under 267 of the Eevision. This is a special proceeding, and the defendant took his case into the higher court in the precise method pointed out by the statute. When his case was there, the District Court could have called a jury to assess the damages, selected
If the statute (§ 1067) denies this right, it is unconstitutional to that extent. But I hold that under this section (1067), or if not under it, then under the Constitution, the District Court might and ought to have granted the defendant’s application for an assessment by a jury of twelve men.
The right to a jury trial on appeal, or on the transfer of the cause to the District Court, being thus secured, sections 1065 ami 1067 of the Revision would not be unconstitutional, although the three who assessed the damages in the first instance were not a jury. It is enough, that on appeal, or other transfer to the higher court, an unfettered right of a jury trial is preserved and provided for.