Kelsh v. Town of Dyersville
26 N.W. 38
Iowa
1885
Check Treatment
Need, J.

Thе cause came on for trial on the sixteenth of June, 1883. On that day a jury was impаneled to try the cause, and counsel for the respective partiеs made their opening statements. The court then adjourned until the eighteenth of the same month. When it convened on that day, and the jurors were called into the box, it was ascertained that one of the number had been taken sick during the adjournment, and that he was not able to perform his duties as a juror. The cоurt thereupon ordered that he be discharged, ‍‌‌‌​​​‌​​​​‌​‌​​​‌‌‌​​​‌​​​​​​​​​​​‌‌​‌​‌‌‌‌​‌‌​‍and that the trial proceed with the remaining eleven jurors. Defendant objected to so much of the order as required the parties to try the cause with eleven jurors, and now assigns the same as error. In making the order, the circuit court proceeded, doubtless, under the provisions of section 2793 of the Code, which provides that the сourse pursued by the court may be taken when, during the progress of the trial, a j uror becomes incapacitated by sickness from discharging his duties. In the recеnt case of Eshelman v. Chicago, B. & Q. R. Co., 67 Iowa, 296, we held that the section, so far as it assumes to empower the court to compel the parties to proceed with the trial with less than twelve jurors, is in conflict with section 9 of the bill of rights. Counsel for plaintiff contend, however, that, as municipal corporations are mere creаtures of legislation, whose powers may be modified, or changed, or takеn away entirely at the pleasure of the legislature, they are in no pоsition to question the constitutionality of the statute under which the court acted in ‍‌‌‌​​​‌​​​​‌​‌​​​‌‌‌​​​‌​​​​​​​​​​​‌‌​‌​‌‌‌‌​‌‌​‍making the order. They argue that, as the legislature has absolute power over these corporations, it would be competent for it to provide that claims against them should be passed upon by any tribunal which it might choose tо create for that purpose, and that the finding or allowance by such tribunal should be conclusive upon them; hence, that the statute in question, which provides as to them a tribunal for the assessment of the damages, invades none of their rights. Or, stated in another form, the argu*139ment is that such corporations have no constitutional guaranty of the right of trial by jury; that all their rights are statutory; and, as the question of defendant’s liability ‍‌‌‌​​​‌​​​​‌​‌​​​‌‌‌​​​‌​​​​​​​​​​​‌‌​‌​‌‌‌‌​‌‌​‍to plaintiff for the injury complained of, and the amount of her damages, have been passed upon by a tribunal created by statute, it has no grounds'for eorcqolaint.

We do not deem it material to inquire as to ‍‌‌‌​​​‌​​​​‌​‌​​​‌‌‌​​​‌​​​​​​​​​​​‌‌​‌​‌‌‌‌​‌‌​‍the soundness of counsel’s premises. We think their conclusions would not follow if the premises were conceded. The legislature has not provided for the creation of any special tribunal to which questions of difference between municipal corporations and other parties shall be submitted for dеtermination. It has conferred upon such corporations the powеr to sue and be sued, and it has provided that their rights and liabilities , shall be determined by the ordinary tribunals in the manner prescribed by law for the determination of the rights and liаbilities of natural persons. The legislation of the state confers upon them the right of trial by jury, whether that right is preserved to them by the constitution ‍‌‌‌​​​‌​​​​‌​‌​​​‌‌‌​​​‌​​​​​​​​​​​‌‌​‌​‌‌‌‌​‌‌​‍or not. Existing statutes сonfer upon them the right to have questions affecting their property interеsts passed upon by j uries constituted in the same manner as are the juries for thе'trial of questions affecting the rights of natural persons. The law has made no distinсtion between the two classes of persons in this respect, and we think it clear that, until provision is made by law for the trial of questions affecting the rights and liabilitiеs of municipal corporations in a different manner, or by different tribunals, than thоse provided for the trial of rights of natural persons, such corporations will have the right of trial by a constitutional jury.

The judgment of the circuit court will be reversed and the cause remanded.

Reversed