Anderson v. Caldwell

• Decision Date: 24 November 1883
• Docket Number: 10,139
• Citation: 91 Ind. 451
• Parties: Anderson v. Caldwell
• Court: Indiana Supreme Court

91 Ind. 451

Anderson v. Caldwell

No. 10,139

Supreme Court of Indiana

November 24, 1883

From the Boone Circuit Court.

The judgment is affirmed, at the costs of the appellant.

J. W Clements and W. H. Thompson, for appellant.

Hammond J. Elliott, J.

OPINION

Hammond J.

This was a proceeding, on the petition of the appellee, for the construction of a ditch, under "An act concerning drainage," approved April 8th, 1881, section 4273, R. S. 1881, et seq. The commissioners of drainage reported in favor of the work, and, also, reported their assessments of benefits and damages to lands affected by it. As to the land of the appellant, they reported that it would neither be benefited nor damaged. To this he filed his remonstrance, raising issues of fact, and demanded that such issues should be tried by a jury. His demand was refused, and the case was tried by the court, resulting in a finding and judgment of approval and confirmation of the report of the commissioners. The appellant, by his exception, motion for a new trial and assignment of error, has properly presented in this court the question whether he was entitled to a jury trial.

Section 4 (4276, R. S. 1881) of the drainage act under consideration provides that "questions of fact shall be tried by the court, without a jury." This, it is claimed by the appellant, is in conflict with section 20, article 1, of the State Constitution, which provides that "In all civil cases, the right of trial by jury shall remain inviolate."

The rule of construction is well settled that an enactment of the Legislature is not to be struck down by the courts for unconstitutionality, unless it is clearly in conflict with the fundamental law. Brown v. Buzan, 24 Ind. 194; Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185; Groesch v. State, 42 Ind. 547; Buskirk Prac. 352.

By section 1 of the code of 1852, and section 249 of R. S. 1881, every action "for the enforcement or protection of private rights and the redress of private wrongs" is "denominated a civil action." The words "civil actions," prior to the adoption of our present Constitution, were not so comprehensive in their meaning. They included only what were known as common-law actions. Section 20 of article 1 of the Constitution was adopted with reference to actions that by the common law were triable by jury. As to such actions the right of trial by jury was to remain inviolate. It was competent for the Legislature, as it did by the code of 1852, to extend the right of trial by jury to cases that previously had not been recognized as civil actions, but it could not, without infringing on the Constitution, abridge such right as to cases triable by jury at common law. The Constitution simply guarantees the continuance of the common-law right of trial by jury. In other cases the Legislature may extend or limit this right, without violating the Constitution.

In Lake Erie, etc., R. R. Co. v. Heath, 9 Ind. 558, in speaking of the constitutional provision respecting jury trials in civil cases, this court says: "The above provision in our Constitution, applies in terms but to civil cases. What, then, within its meaning, is a civil case? Not every case which is not a criminal, is a civil one. 'Civil case' had a definition, a meaning, at common law, when the early Constitutions of this country were formed; and it has been held that the term was used in those Constitutions in the common-law sense."

Again, in Allen v. Anderson, 57 Ind. 388, it is said: "This provision" (section 20, article 1) "of the Constitution was adopted in reference to the common-law right of trial by jury, as the language plainly imports, namely, that the right 'shall remain inviolate,' that is, continue as it was. The words 'in all civil actions' mean, in all civil actions at the common law--as debt, covenant, assumpsit, trover, replevin, trespass, action on the case, etc."

Section 16 of the act of 1859, relating to supervisors, 1 R. S. 1876, p. 858, authorized the supervisor to enter upon any land adjoining or near any highway, and thereupon to construct ditches, etc., to remove gravel, etc., or to cut down and remove any wood or tree necessary for the construction or repair of a highway. The person aggrieved could petition the township trustee for an assessment of damages; the trustee thereupon appointed three disinterested persons to make the assessment of damages, which were paid out of the township fund. No appeal was provided for, nor any method of trial by jury; and yet the party injured had no remedy but that provided in the statute; he could not bring suit against the supervisor. It was held that this statute did not conflict with the Constitution. Dronberger v. Reed, 11 Ind. 420.

In the case of Evansville, etc., R. R. Co. v. Miller, 30 Ind. 209, which was an appeal to the circuit court from an assessment for damages sustained by the owner of land taken for the railroad, it was held that a jury trial was not allowable as a matter of right.

The question in the present case is whether the proceeding under the drainage act of 1881, for assessing benefits and damages to lands affected by the ditch, is a civil action, as that term was understood in this State prior to the adoption of our present Constitution. We are inclined to the opinion that this proceeding is not a "civil action," within the meaning of the Constitution. We think it is a special statutory proceeding, in which it is competent for the Legislature to dispense with a jury. Hays v. Tippy, ante, p. 102. At all events, we can not say with certainty that the statute under consideration, requiring the trial to be by the court without a jury, is clearly in conflict with the constitution. In such case, it is our duty to declare in favor of the constitutionality of the law, leaving the hardship, if any, to be corrected by the Legislature.

We find no error in the record.

The judgment of the court below is affirmed, at the costs of the appellant.

Filed Nov. 24, 1883.

CONCUR BY: Elliott

CONCUR

Elliott J.

The gravity and importance of the questions involved in this case will, it is thought, be deemed a sufficient excuse for adding to what has been said by my brother Hammond.

The right which the Constitution declares shall remain inviolate is the right to trial by jury as it existed when that instrument was adopted. The right so carefully guarded and preserved is the one transmitted to us from our British ancestors. The right meant by our Constitution is the great one which has occupied such a prominent place both in law and in history. We are therefore to look to the common law to ascertain what this...