and usual functions of a jury, and their number is a matter of discretion with the legislature.1 Juries are for the trial of issues of fact in civil and criminal proceedings in courts of justice, and are not necessarily required in the assessment of land-damages. The early practice in many of the states, both before and after the adoption of their first constitutions, was to assess the damages by commissioners, instead of a jury, which would indicate that the preservation of the right of trial by jury was to be confined to cases other than those of the condemnation of land. The right to trial by jury is not claimed in equity cases, although rights of property are involved and issues of fact arise. Condemnation is not an action at law, but an inquisition on the part of the state for the ascertainment of a particular fact, and may be conducted without the intervention of a jury. Later constitutions and legislation secure to the owner the right of assessment of his damages by a jury of twelve men, in a court of record. The constitutional pro 1 Lafayette Plank-Road v. Pickett, 25 Mo. 535; West River Bridge v. Dix, 6 How. 507, per Woodbury, J.; Raleigh R. R. v. Davis, 2 Dev. & B. 451; Evansville R. R. v. Miller, 30 Ind. 209; Ames v. Lake Superior R. R., 21 Minn. 241. Contra, Day v. Stetson, 8 Me. 365; Isom v. Mississippi R. R., 36 Miss. 300. 2 Livingston v. Mayor of New York, 8 Wend. 85; The People v. Smith, 21 N. Y. 595 (overruling Clark v. Utica, 18 Barb. 451); Beekman v. Saratoga R. R. 3 Paige, 45; Scudder v. Trenton Falls Co., 1 N. J. Eq. 694; Whiteman's Executors v. Wilmington R. R., 2 Harr. 514; Houston R. R. v. Milburn, 34 Texas, 224; Buffalo R. R. v. Ferris, 26 Texas, 588; Hymes v. Aydelott, 26 Ind. 431; Dronberger v. Reed, 11 Ind. 420; Lake Erie R. R. v. Heath, 9 Ind. 558; Norristown Turnpike v. Burket, 26 Ind. 53; Johnson v. Joliet R. R., 23 Ill. 202; Heyneman v. Blake, 19 Cal. 579; Willyard v. Hamilton, 7 Ohio, pt. 2, 111. 3 Van Horne's Lessee v. Dorrance, 2 Dall. 304; Mount Washington Road, 35 N. H. 134; Backus v. Lebanon, 11 N. H. 19; Baker v. Holderness, 26 N. H. 110; Dalton v. Northampton, 19 N. H. 362; Gold v. Vermont Central R. R., 19 Vt. 478; In re Paschall St., 81 Pa. 118; Norristown Turnpike v. Burket, 26 Ind. 53. • Koppikus v. State Capital Commissioners, 16 Cal. 248. 5 Mitchell v. Illinois R. R., 68 Ill. 286; Paul v. Detroit, 32 Mich. 108; Chicago R. R. v. Sanford, 23 Mich. 418; Whitehead v. Arkansas R. R., 28 Ark. 460; Const. Ark., art. V., ¿ 48; New Const. Pa., art. XVI., part 2 8: "And the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury, according to the course of the common law." Pusey's Appeal, 83 Pa. 67; Williams v. Pittsburgh, 83 Pa. 71. vision requiring a trial by jury repeals, to that extent, all former acts and charters allowing compensation to be assessed in other ways, and the condemnation must be by jury. The former acts and charters may be followed in other respects, but in regard to the requirement of a jury-trial the constitution executes itself, without additional legislation.' In order to have the preliminary assessment as inexpensive as possible, the first examination is made, in many states, by commissioners, from whose award there may be an appeal and a trial by jury. This will satisfy the constitutional requirements of a trial by jury. If the owner does not appeal, he is presumed to have abandoned his right to trial by jury. The owner, in appealing for a trial by jury, should not be compelled to give a bond with sureties, as that would fetter the right to trial by jury. such an appeal, the preliminary proceedings need not be repeated. The object of such an appeal is to have, under proper instructions, a jury-trial of questions of public utility and damages. All irregularities are ordinarily waived by appeal, including the irregularity that the owner was refused the right of trial by jury below. The right of trial by jury may be given below, with a trial by commissioners above, in the discretion of the court.8 On 92. Rules governing proceedings-Open and closeChange of venue-References- - Due process of law. - In proceedings for the condemnation of land, the owners have the affirmative of the issue as to the value of the land, and 1 Kine v. Defenbaugh, 64 Ill. 291; The People v. McRoberts, 62 Ill. 38; Campau v. Detroit, 14 Mich. 276. 2 The People v. McRoberts, 62 Ill. 38. Contra, Lan b v. Lane, 4 Ohio St. 167. Hord v. Nashville R. R., 2 Swan, 497; Norristown Turnpike v. Burket, 26 Ind. 53; Sigafoos v. Talbot, 25 Iowa, 214. Steuart v. Mayor, 7 Md. 500; Reckner v. Warner, 22 Ohio St. 275; Lamb v. Lane, 4 Ohio St. 167. 5 Weir v. St. Paul R. R., 18 Minn. 155. Kemp v. Smith, 7 Ind. 471. ▾ Williamson v. Cass County, 84 Пl. 361 (1877). • Des Moines v. Layman, 21 Iowa, 153. hence the right to open and close, without regard to which party initiated the proceedings1 or prosecuted the appeal.2 In New York, the commissioners decide which party shall have the open and close, and their decision is final.3 In South Carolina, the appellant has the open and close on appeal. In Georgia, the party originally moving has the open and close on appeal." A condemnation proceeding may be taken, by change of venue, to another county from that in which the land lies. The party asking for the change thereby waives the right to a jury of view, for the reason that the court cannot send its jury into another county." An amicable reference is a bar to a further appraisement by commissioners. The majority of arbitrators thus constituted may act. An agreement to arbitrate the matter of damages is binding, and is not within the statute of frauds.10 The Supreme Court of Maine, pushing to its furthest limit the doctrine that the statutory remedy is exclusive, hold that parties cannot submit the question of damages to referees and recover on their award, although there is a statute providing for the submission to arbitration of matters in dispute. The Bills of Rights of many of the states contain a 1 Burt v. Wigglesworth, 117 Mass. 302; Minnesota R. R. v. Doran, 17 Minn. 188; Oregon R. R. v. Barlow, 3 Oreg. 311. It is not such error as to warrant reversal that the court below allowed the corporation to open and close the evidence and argument to the jury. Neff v. Cincinnati (Supreme Court Commission, Ohio), 6 Cent. L. J. 156. 2 Winnisimmet Co. v. Grueby, 111 Mass. 543; Connecticut River R. R. v. Clapp, 1 Cush. 559. 3 Albany R. R. v. Lansing, 16 Barb. 68. 4 Charleston R. R. v. Blake, 12 Rich. L. 634 5 Harrison v. Young, 9 Ga. 359. 6 Simmons v. St. Paul R. R., 18 Minn. 184. Rockford R. R. v. Coppinger, 66 Ill. 510. Tunbridge v. Tarbell, 19 Vt. 453. 9 Piper v. Connersville Turnpike, 12 Ind. 400. 10 La Crosse R. R. v. Seeger, 4 Wis. 268. clause that private property shall not be taken "without due process of law." This means the judgment of the law pronounced upon trial, after the matter is judicially ascertained, and does not refer to a taking of private property for public use." A § 93. Effect of subsequent legislation on proceedings — Reversal of proceedings.—The legislature cannot pass an act, with a retroactive effect, providing for the assessment, in a particular way, of damages which had already been suffered. Damages inflicted without legislative sanction could not be for public use, and a subsequent declaration that they were such could not make them so. Proceedings that are pending, instituted under proper authority, may be vacated by subsequent legislation. new inquisition may be ordered by the sovereign before the first one is concluded. There is nothing in the nature of a contract between the owner and the state, by which the owner has a vested right in the amount awarded, so that a subsequent examination, provided for by subsequent legislation, shall operate as an impairment of the obligation of a contract, even though no appeal were allowed from the award. The repeal of a law operates to render all proceedings void from beginning. It is as if no such law had ever been passed.' A subsequent act may provide for a construction to be placed upon a former act, and that the damages shall be thus determined. The remedy may be 1 Eastman v. Stowe, 37 Me. 86. Heyward v. Mayor of New York, 7 N. Y. 314. 8 Jordan v. Hyatt, 3 Barb. 275. • Matter of Townsend, 39 N. Y. 171, Miller, J., dissenting. Baltimore R. R. v. Nesbit, 10 How. 395; Hampton v. The Commonwealth, 10 Pa. 329. 6 Garrison v. New York, 21 Wall. 196. ▾ Hampton v. The Commonwealth, 19 Pa. 329; The Commonwealth v. Beatty, 1 Watts, 382. Yost's Report, 17 Pa. 524; Fenelon's Petition, 7 Pa. 173. changed to affect pending proceedings, and strike out the allowance of benefits as a set-off to damages.1 When the report of damages had been confirmed, and the delay was only in paying the damages assessed, the subsequent act could not affect the proceedings,' or operate to turn the claimant over to another municipal subdivision for his damages.3 The reversal of proceedings on appeal does not constitute the party entering under authority of the judgment below a trespasser. The law-making power may not only amend the present remedy, but may even substitute a new one, provided there be no interference with the company's franchise or the citizen's right. The corporation cannot claim that a change in the remedy violates the contract of its charter. The form of the remedy is within the legislative power, and this power cannot be restrained by contract, although the new remedy be less convenient, or less prompt and speedy, than the old. The addition of the right of appeal to the remedy of the owner, where formerly no such right existed, is only an enlarging of the remedy, and not an impairment of the rights of the company." 1 Springfield R. R. v. Hall, 67 Ill. 99. The People v. Supervisors, 4 Barb. 64. Dussuau v. Municipality, 6 La. An. 575. • Appeal of Long (Sup. Ct. Pa.), Chi. Leg. N., Oct. 26, 1878, reported. |