
    Jonas Shaver v. Joseph Starrett.
    The statutory provisions authorizing the establishment of township roads, do. not contravene the constitutional provision that “private property shall ever be held inviolate, but subservient to the public welfare.”
    A township road is as subject to public travel, and as free and open to every individual, as any other road in the state.
    But the-statute is fatally defective in this, that it makes no provision for a jury,, in the proper sense of the term, to assess the damages of the property-holder. Lamb and McKee v. Lane, affirmed.
    Error to the court of common pleas of Muskingum county.
    The case is sufficiently stated in the opinion of the court.
    
      Jewett & O'Neil, for plaintiff in error:
    This question must bo decided by the construction to be given to-one, or both, of two provisions of the constitution of 1851 — article I, section 19, article XIII, section 5.
    The first of these sections may be safely divided. It contemplates - two classes of eases; and whilst it seeks to secure a compensation to the owner of the property taken in both, it recognizes *a difference between property taken for purely public purposes, and property taken for purposes partially public. In the first it leaves the question with the legislature to determine how the compensation shall be assessed, secured, or paid; in the second it provides expressly that such compensation shall first be assessed by a jury,, and first paid or secured.
    
      There is no doubt about the right to appropriate private property to the public use, and of the power of the legislature in the absence ■of any constitutional provision to direct the mode and manner of making compensation to the owner. Such has been the practice in this state and everywhere else.
    There is nothing in the nature of the case itself that requires a jury; it has never been so treated or considered, and surely we .are safe in concluding that in the absence of the provisions of the ■constitution, which we have quoted, no question of this kind could have arisen. Do these provisions then require, that in a case like this, compensation should be assessed by a jury of twelve •men?
    
      “ When taken in time of war,” when taken “for the purpose of ■.making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money.” Thus far this section is complete, both as to a class of cases in which the public, as such, is alone interested, and from which no individual is to be benefited to the exclusion of another; it is complete also as to the remedy, providing that compensation shall be made, but leaving it to the wisdom of the legislature to determine how it should be assessed, and when paid or secured. The section then .goes on and provides for another and the remaining class of eases, having no other connection with the previous division of the section than to exclude therefrom the benefit of its provisions. And as to this remaining class, it is provided and required that the compensation shall be assessed by a jury, and shall be first paid, or first secured. Considered seq>arately, they are harmonious; but make the provision of the *one apply to the other, and they are incongruous. If a jury is required in the first class of cases, upon the same reasoning compensation must first be made or secured and thus the object of the first clause of the section is entirely destroyed.
    If in error in this view of the first of these sections, we claim ■that the second sustains the construction given to it by the legislature in the passage of the law in question. A jury is any number of persons designated by the law to determine difficulties between parties. In civil it is not as in criminal proceedings. In the former there has been no uniformity in the number required to ■try questions of this kind. In some instances they are entirely withdrawn. In others they in number the character of the case, and the amount involved, always being subject to the law-making power of the country in which the question may arise. Not so in the latter. A jury to try crime has always been regarded and understood as consisting of twelve men. When, therefore, the constitutional convention provided that compensation should be assessed by a jury, it meant such a jury as the general assembly should authorize and require for the trial of questions of that character. When it was determined that the jury should consist of twelve, as in the case of a right of way, that number was expressly mentioned, thereby withdrawing from the legislature the discretion which it could otherwise have exercised.
    In any other view of the case there was no necessity for incorporating into the constitution section 5 of article 13. If a jury in every case, of necessity consisted of twelve men, it was fully provided for in the first of these sections.
    
      Marsh & Ball, for defendant in error:
    The. defendant in error' claims that section 19, article 1, of the •constitution, is not correctly interpreted by the plaintiff in error; that it is not divisible, as by him suggested; that a jury is required to determine the compensation to be paid to the owner *of land through which a road is laid out; that the framers of the constitution meant something when they substituted the word jury for the word viewers; that a jury in civil as well as criminal eases must be composed of twelve men; that section 5 of article 13 can not have the bearing upon article 1, section 19, that the plaintiff •contends it has; that costs in the probate court, on appeal, should be taxed against the appellee when the compensation is increased on the review; that costs in that court should not be taxed against the appellant when, upon the review, the location is materially changed, as in this case.
    That exception to the proceedings in the probate court which is based upon the fact, which appears by the record, that the case was heard in that court on a different day from that to which it was continued, I wish to withdraw; we ask nothing in consequence of that delay, whether the exception was well taken or not.
   Thurman, C. J.

On March 6, 1854, the plaintiff, Shaver, and ethers, petitioned the trustees of Blue Rock township, Muskingum county, to lay out and establish a township road through the lands of the defendant, Starrett, and others. Such proceedings were had that, on April 3, 1854, the road was established by the trustees, and $40, Starrett’s damages, assessed by the viewers, ordered to ho paid to Mm. He appealed to the probate court, by which reviewers were appointed, who reported in favor of establishing the road, with a slight variation, and assessed his damages at $50. • The court confirmed this report, and he filed a petition in error in the common pleas ; on the hearing of which, said order of confirmation was reversed. To reverse this judgment of reversal, the present petition is prosecuted.

It is unnecessary to notice the various assignments of error filed in the common pleas. There is one of then — going to the very foundation of the proceedings — that fully sustains the judgment *of the court, to wit, that Starrett’s land was taken for a qmblic use without compensation having been assessed by a jury.

The constitutionality of the statutory provisions for the establishment of township roads, has lately been questioned, upon the ground that the land appropriated for such roads is not taken for a jpublic use. If this were so, the invalidity of the statute would be-manifest, since tbe constitution provides (art. 1, see. 19) that “ private property shall ever be held inviolate,” and the only exception, to this rule is, that it shall he subservient to the public welfare.” It follows that it can not be taken for a mere private use; nor could it, I apprehend, were there no express constitutional provision upon the subject — and this for the plain reason, to say nothing more, that no such power has been delegated to the assembly.

But is a township road a mere private way, and tbe land appropriated for it taken for a mere private use? We do not think so,, and have held the contrary at the present term, in the case of Ferris et al. v. Bramble et al. It is true that that case arose under the former constitution, but that makes no difference, for that constitution also prohibited the taking of private property fox any but a public use.

The objections to tbe statute under this head are, that the road may be established if found necessary for the “ convenience ” of the applicant or ap]3licants, and their neighbors; that it is to be kept open and in repair at the expense of the applicants, and that it is not expressly declared by statute to be a public highway, but on fhe is denominated a “ or road.” These provisions and characteristics, it is said, show that the road is not laid out for the public use.

It is unnecessary at this time to elaborately answer these objections, for it is not in this case that they were made; and, besides, I consider it more proper to refer to the opinion that will be drawn up in the case above mentioned. I will say, however, that if there is any validity in them, they were equally valid *against every township road law ever enacted in this state, and it is somewhat singular that their force was not perceived until after the lapse of nearly half a century.

What is a public use, and how many of the people must be interested in the establishment of a road before it can be said to be laid out for the “public welfare?” Is not a use public, when every person in the state has a right to it ? If so, why is not the use of a township road a public use ? It is true, it is kept open and in repair at the expense of the applicants, but they- have no more right in or over it than any other citizen or inhabitant. It is just as subject to public travel, just as free and open to every individual, as any other road in the state; and this public character is in nowise affected by the name given to it in the statute or the failure to call it a public highway.

But there must be a public necessity for the use, it is said, to justify taking private property for it. The words of the constitution are, “public welfare,” but I have no objection to the term “necessity,” provided that it be not used as synonymous with “ indispensable.” Eightly understood, I assent to the proposition; but what is a public necessity or the public welfare ? Must every citizen in the state have a particular interest in the establishment of a state road, every citizen of a county a like interest in respect to a county road, and every citizen of a township such an interest in a township road, before it can be said that they are required for the public welfare? I think this will hardly be pretended, and if not, then it must be admitted that the welfare — or the “ convenience,” which may mean the same thing — of a less number of the people may suffice. And applying the familiar maxim, that a law is to be construed with reference to its subject-matter — which is just as true of constitutions as of statutes — it will not be found difficult to say that the persons interested in the establishment of a mere township road need not be so numerous as would be required to create a public necessity for a state or road. A for the convenience of *the applicants and their neighbors, is what the statute requires, and if it be properly understood and be administered as it ought to bo — and not converted into an instrument to take private property for mere private advantage without any public necessity— we do not think the constitution will be violated in the particular I have been considering.

But there is a fatal objection to the present law, growing out of a provision in the existing, that was not contained in the former constitution. The statute makes no provision for a jury, in the proper sense of the term, to assess the damages of the property holder. This defect we-hold to bo fatal in the case of Lamb and McKee v. Lane, ante, 167, and after carefully reconsidering the grounds of that decision, with the aid of the reargument of them in this case, we find no reason to change our opinion, but, on the contrary, are more strongly confirmed in it.

The judgment of the common pleas must therefore be affirmed.  