Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-04-15
WATER DISTRICT.
Continued from page 81.

reservation of expressing an opinion
when a case should properly be pre-
scented.
In Conant's Appeal, SO Me-, AZ, the
question before the court was the con-
struction to be given to a statute en-
acted by the legislature. Mr.. Justice
Emery in delivering the opinion says.
The Bill of Rights declares that in all
cases concerning property, the parties
shall have a right to trial by jury, ex-
cept In cases where it had heretofore
been otherwise practiced. This right
should be recognized in all such con-
troversics between the citizen and the
government. The spirit of legislation
upon the subject has always been in
harmony with the principle and, what
ever the words of omission in the stat
ute we should be slow to infer any in
tention to violate the principle"
In Cushman V. Smith, 81 Me-, 247, it
is stated in the opinion by Shepley, c.
J.. This provision of the constitution
was evidently not intended to prevent
the exercise of legislative power to
prescribe the course of proceedings to
be pursued to take private property
and appropriate it to public use Nor
10 prevent its exercise to determine the
manner in which the vaIua of such
property should be ascertained and
uayment made or rendered. The legis-
Iativc power is left entirely free from
embarrassment in the selection and ar
rangcmcnt of the measures to be
adopted to take private property and
apprOpriate it to public use, and to
cause Il Just compensation to be made
therefor.
In Richie V. Bar Harbor Water Com
many, u Me, 81, it is stated in an
opinion by Appleton, c. J., THE mode
and manner by which the individual
whose property is taken for public use,
shall obtain compensation, is to be de-
termincd by the Legislature. 1t cannot
BE- determined in any other way"
In neither of these cases was the
question here under discussion in
volvcd or decided.
In view of the absence of any ad-
Indication upon the subject by this
court, and in view of the conflicting
dicta by the learned justices in the
three cases last cited, the question
whether the citizen whose property is
taken for public use has the conStitu-
tionaI right to have his compensation
determined by a trial by jury, must be
regarded as an open question in this
jurisdiction.
The constitutional clause here in
volved is, In all civil suits and in all
controversies concerning property the
parties shall have Il right to trial by
jury
The trial by jury guaranteed by the
| Constitution is a trial by a common
law jury, mpanelled and sitting in a
court of competent jurisdiction, pre-
sided over by judge of the court
1t is a significant fact worthy of
consideration in this connection, that
| in Massachusetts the right of a citizen
whose land was taken for highway
| purposes. to have the damages assess
| ed by a common law jury was not
granted under the constitution of that
state until 1873. Public Acts 1873,
Chapter 261; nor was such right
granted in this state until 1883; Pub
lie Laws 1883, Chapter 175, Section 4.
Prior to these respective enactments
damages in such cases We're assessed
by q committee appointed by the court
or by sheriff's jury, SO called, jury
selected and summoned by the sheriff
and presided over by him, or by some
other person possessing no judicial
functions The validity or constitu
tionality of such proceedings do not
seem to have been ever questioned in
either state.
proceeding for assessing the
amount of just compensation for pri
waite property taken for public uses is
not n civil suit" 1t is special pro-
cccding provided and authorized by the
sovereign power by whose authority
tn" property is taken to determine
specific fact. The proceedings are in
the nature of an inquisition on the part
of the state. Garrison V. City of New
York. II Wall, 2Oi Mills on Eminent
Domain. par. 81.
1t has sometimes been called a pro-
cccdinE in rem. St. Paul, Minneapolis
u Manitoba Railway Co. V. city of
Minneapolis, 80 Mimi, 145; Cupp v.
COM of Seneca County, 10 Ohio St,
II lS2.
The Court of Massachusetts in Hen
dcrson Y. Adams, > Cush., 610 decided
that complaint for flowing lands was
not demand which could be the sub
II jet of an action at law or suit in
equity, but was particular statute
mode of redress which must be pur-
sued. Suits" and actions" are prac-
tically synonymous. IAN action" is
defined by Lork Coke to be "a lawful
demand Of a mans right" In this
state it has been held that, under a
provision of statute declaring that ac-
tons pending at the Tune Of the pas
sage or report OF an act, are not al
fectcd thereby, that petition pending
before the county commissioners for a
location of a highway was not an "ac-
tion.' Webster V. County CONS, Ga
Me, q; and in Belfast " Fogler, a
Me, 4OS. a proceeding in Insolvency
was not an action.
We are of the opinion that the de-
1endant here, the Maine Water Com
pany, is not entitled by the phrase, "lr
all civil suits to have its compensation
determined by a trial by jury.
Does the additional language of the
same constitutional clause, land in al
controversies concerning property
give 1t that right?
Inc sovereign power of the state ha'
the inherent power to take private
property for public uses when the pub
lie eXigencies require it. The only ex
n