
    John Lamb and John McKee v. Benjamin Lane.
    The provision in section 19 of article 1 of the constitution, that “ such compensation shall be assessed by a jury, without deduction for the benefits to any property of the owner,” applies to all the cases mentioned in the sec* tion.
    The word “jury,” in that section, as well as in the other places in the constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence, and arguments of the parties. And they may be sent to inspect the premises.
    No valid appropriation of property for public use can be made without a law 
      providing compensation to the owner, to be assessed in the mode prescribed in the constitution. The constitution, in this particular, does not execute itself.
    As there was no such law in existence, when the proceedings to condemn Lane’s property for the use of a road took place, nor any waiver by him of his righi to a jury trial, the proceedings were invalid.
    An assessment may be made by viewers in the first instance, provided a right of appeal is given to a court in which they may be assessed by a constitutional jury.
    This was an application for leave to file a petition in error, to reverse a judgment of the court of common pleas of Trumbull county.
    *The material facts, as shown by the record, are as follows:
    At the March session, 1854, of the county commissioners of Trumbull county, said John Lamb and Jobn McKee, with numerous other freeholders, presented their petition for the establishment of a county road, between points and upon a line therein described; which line passed through the lands of said Benjamin Lane. Proof that due notice had been given being made, and a bond as required by law being executed by said Lamb and McKee, as principals, witb others as their sureties, the commissioners, at the same term issued their order to three viewers, to view the proposed road, and if they, or a majority of them, should he of opinion that it ought to be established, then to assess damages pursuant to the statute.
    At the June session, 1854, the viewers reported in favor of establishing the road, and that said Lane had claimed damages, and they had assessed them at the sum of $500. Thereupon, Lane and others presented a remonstrance, and prayed for a review, which was accordingly ordered, and five reviewers appointed.
    At the September session, 1854, the reviewers reported in favor of establishing the road, and the commissioners being of the same opinion, and also approvi ng the assessment of damages, it was ordered that it should he established upon the payment of the damages.
    From this decision Lane appealed to the probate court, wherein such proceedings were had, that; on October 17, 1854, his damages were assessed by a jury of six men, at four hundred dollars, which finding, with the other proceedings in the court, after being recorded, were certified by the judge to the county auditor, and laid before the county commissioners at their December session, ,1854. Thereupon, the commissioners ordered that the road should be established upon the payment of said four hundred dollars into the county for the use of Lane, and the same being afterward so paid on February 28, *1855, an order was issued to the proper supervisor to open the road.
    At the March term, 1855, of the' court of common pleas, Lane exhibited his petition in error against Lamb and McKee, praying a reversal of said final order of the county commissioners establishing said road, and assigning for error “that the said commissioners ordered the said road to be established without any opportunity on the part of the plaintiff to have his damages for the same assessed by a jury, as provided by the constitution of this state in his favor, and without any assessment having been made.” And, as reasons for making Lamb and McKee, only, defendants, he represented that they were the only principals in the bond hereinbefore mentioned, and that they were the principal petitioners for the road, the other petitioners having no interest in the subject beyond the general interest, and, besides, they were very numerous.
    To this petition, Lamb and McKee answered in nullo est erratum; and thereupon, at the same term, the cause came on to be heard, and the court reversed the order- of the commissioners; whereupon Lamb and McKee moved that the cause be set down for further proceedings in the common pleas, which motion the court overruled.
    To reverse this judgment of reversal, or, if that can not be done, to reverse the order overruling said motion, leave was asked to file a petition in error in this court; and the following errors were assigned, to wit:
    1. The court erred “in holding for naught and reversing the proceedings and order of the county commissioners.”
    2. “In rendering judgment in favor of Benjamin Lane and against the plaintiffs.”
    3. “ In refusing, a&er reversal, to cause a legal assessment of said Lane’s damages, and neglecting to «make any proper order in the premises.”
    4. “ In holding that the assessment of said Lane’s damages in *the manner shown by the record, was a violation of the constitution of Ohio..”
    Birchard, in support of the application.
    
      Butliff & Tuttle, contra.
    Birchard, for motion:
    I. Assuming that section 19, article 1, of the constitution secured to Lane a jury of twelve to assess Ms damages, if he waived that right it was not error to assess the damages in any other manner. Not only might he have agreed to submit the damages to arbitration by three or five men, but he might, as in this case, agree to let the assessment be made by six men, selected, as required by the statute, in the probate court. Flint River S. B. Co. v. Foster, 5 Georgia, 194.
    II. While the right is left to appeal to the court of common pleas, and get from that court any legal order, the preliminary proceedings, though they may clog, do not destroy the ri^ht of assessment, and do not render the law or the proceedings under it unconstitutional. Flint River S. B. Co. v. Foster, 5 Georgia, 194; 1 Binney, 416; 13 S. & R. 405; 2 Murph. 41; 1 Hawks, 482; 8 Yerg. 444; 4 Conn. 535; 4 Bibb, 416; 1 Marsh. 372.
    III. Making the assumption before stated (No. 1), Lane might have had such a jury by appealing to the common pleas instead of the probate court, because the former is a court of record, known to the common law, and has power to make any order on appeal that justice requires — a fortiori, an order for assessment by a jury of twelve, if the constitution secures that.
    IY. Lane, therefore, waved any such right to a jury of twelve by not appealing to the common pleas, and going into the probate court.
    Y. But section 19, article 1, does not require such a jury. (1.) The constitutional provision in section 5, that the right of trial by *jury shall be inviolate, only means such right as was known to the law when this new constitution took effect. Then no common-law jury-trial was known in such a proceeding as this. (2.) If we look to the statute, we find that a jury of six was the only one then known for such a case. Act of March 25, 18^1. (3.) Juries of six, before justices, etc., had been known for many years. That was the name given by statute, and by that name they were known by the people, and by the members of the convention which framed the constitution. (4.) Section 19, article 1, and section 5, article 13, taken together, show that those who framed the constitution did not regard the term “jury” as implying, in all cases, and ex vi termini, the number twelve. As used in article 13, “ a jury of twelve men,” by all rules of construction, implies, that as applicable to that class of cases, if the words “ of twelve men” had not been used, six would have been sufficient, as it had been in other cases. Uxpressio unius est exclusio alterius.
    
    
      VI. As applied then, to the assessing of damages for appropriating private property, in the exercise of the right of eminent domain, the term jury had just the meaning fixed by statute in such cases.
    VII. If the question of constitutionality be in doubt, the law must be treated by courts as constitutional.
    VIII. The court of common pleas should either have sent the case back, in order that further proceedings might be had, avoiding the error complained of, if existing, or should have regarded the case properly before it for the purpose of correcting that error; and should have proceeded to correct it by impaneling a proper jury of twelve. Secs. 511, 527, 531, of the Code.
    
      Sutliff & Tuttle, against the motion:
    I. Article 1, section 19, in providing that such compensation shall be assessed by a jury, “ intends to determine and define the tribunal by *which the compensation shall be assessed.” But that can not be, unless the word* “jury ” is taken in some determinate and defined sense. And the signification of the term must have been fixed in one of two ways ; by the definition of it in the constitution itself, or by its previous use.
    II. The term, as defined in the constitution, is a body of “ twelve men,” acting in a court of record. Art. 13, see. 5. The position most favorable to the plaintiff in error, therefore,, is to say, that the term is not defined in the constitution, and use alone must be looked to for its signification.
    III. In the statutes, the term has been used with vagueness as to the number of men. When the constitution was adopted, there were juries of twelve, of six, of five. Swan, old ed., tit. Sheriffs and Coroners. See also statutes as to apprenticeship, as to trials before justices, and as to occupying claimants.
    IV. If the constitution uses the term jury according to this loose statutory use, nothing is defined or limited by it, and it affords no sort of guaranty for the right referred to.
    V. But when the constitution was adopted, there was another use of the word “ jury; ” that, namely, in which, ex vi termini, without addition or explanation, it denoted the jury of twelve men. 2 Rent’s Com. 13 (4 ed.), note. So entirely has the common-law use of the term been resorted to in construing the constitutional provisions for trial to and settling their effect, that, in cases where a jury was not given at common law, it- is still held not to be given by this provision. But in all these cases where a body of men differently constituted, has been held to be lawful, it has been put upon the ground, not that such a, body is a jury, but that in such cases a jury is not required, because not required at common law. Willyard v. Hamilton, 7 Ohio (pt. 1), 111. .Here, there is a use of the term, which would serve the purpose of the framers of the constitution, the limitation of the tribunal under consideration. No other supposible use does afford this limitation ; the framers of the constitution ^intended a liinitation; consequently, they must have intended this use of the term, which alone would give that limitation.
    YI. There are other principles of construction which give the same result, and require us to take the term as used in its higher and more important sense. Of these, additio probat minoritatem, is one.'
    YII. The argument is not legitimate, that at the time of the adoption of the constitution by the people, *there was a statute pro. vidirig for a body of six, called a jury, to assess damages in such cases. Act of March 25, 1854, Curw. 1672, sec. 2-4. The constitution had been entirely completed and signed fifteen days before the passage of this law. The language of the former is that of its framers only. Though submitted to the people, it derived its legal efficacy from the action of its framers only. See Old Cons., art. 7, sec. 5. They were not required even to submit the instrument to the people at all. Although they did so, yet its language was their own, used in the meaning of such language, when they selected it to express their ideas.
    YIII. The decisions relating to the provisions in the old constitution, simply establish some of the common-law limitations of the right, and show that it did not extend to assessments of property taken for public use, tacitly admitting what would belong to such proceedings, if the right of such trial did extend to them. The present constitution extends the right to such cases; it is the same now, as if the right had existed at common law.
    IX. The new constitution, adopted in view of those decisions, was designed to remove this evil. If the present law is constitutional, there is no alteration of the matter from what stood before. To submit the matter to a body of men constituted as the old committee was, to all substantial purposes, does not alter the matter, although the triers be called committee in one law, and jury in another.
    X. The case of Work v. The State, 2 Ohio St. 296, is referred to, and should determine this case also.
    *XI. The common pleas has no jurisdiction of the question of damages, unless it might take it contrary to the words of the statute, expressly declaring that the claim for damages shall go to the probate court. And to give the power in question to the court of common pleas, would be to vest it with a discretion as to the estabment of the road at the public expense, designed by the law to be exercised only by the commissioners.
    XII. This view also applies to the refusal of the court of common pleas, on error, to retain the case for further proceedings.
    XIII. But no such jurisdiction as that last referred to is given to the common pleas, except in the single instance of proceedings certified from before a justice. Sections 532,526, of the code, relate to the district and Supreme Court only, and require the proceedings to be sent back for trial.
    XIT. There was no waiver. Consent can confer no judicial power. But the motion on the part of Lane was a merely compulsory act.
   Thurman, C. J.

The questions presented by this record have been very fully and ably argued by counsel, in order that they might be decided upon this application, the applicants not wishing leave to file their petition unless the court, upon mature consideration, should be of opinion that the judgment complained of ought to be reversed. It is not our practice to hear fully, upon a mere motion to file a petition in error, since we do not require to be convinced that a judgment is erroneous before granting such .leave. It is sufficient that we doubt its correctness, or that the question is one which, though not difficult, is yet of such general importance, that it ought to be decided by the court of the last resort, and reported. But where, as in this instance, the questions are of unusual gravity, and their decision at an early day is highly desirable, we do not hesitate to depart from our usual practice, and consider them as fully, upon a mere motion for leave to file a petition, as we would upon the petition if filed.

*It was not pretended in the court below, nor is it now that the of the statute in respect to the-laying out of roads, were not complied with in this case. But the objection made, is, that when these proceedings took place, there was no law providing for such a jury to assess Lane’s damages, as he had a right under the constitution to demand, and that, consequently, the attempt to appropriate his land was unconstitutional.

That private property shall not be taken for public use without compensation in money being made to the owner, and that such compensation shall be assessed by a jury,” are express provisions of the constitution (art. 1, sec. 19); and that no valid appropriation can be made without a law providing such compensation, is a fundamental principle often asserted, and nowhere more strongly than in this state. “Before the owner can, without his consent, be deprived of his land, for the public use, the legislature must declare by law that the public welfare requires it, direct the mode of ascertaining its value, and provide for its payment,” was the language of the court, in McArthur v. Kelley, 5 Ohio, 143. “ Unless the law, by which the defendant’s property is taken for a public use, provides him a compensation, it is void,” said Chief Justice Lane, delivering the judgment of the court, in Foote v. Cincinnati, 11 Ohio, 410.

That where the constitution prescribes the mode of assessment, that mode must be pursued; and that the constitution, in the particular case under consideration, does not execute itself, but that provision must be made by law for the selection, etc., of a jury, are propositions sufficiently obvious and not denied.

This brings us to the questions involved in this case, to wit:

1. Does the provision in article 1, section 19, of the constitution, for an assessment of compensation by a jury, apply where property is taken to make or repair roads, which are to be open to the public without charge ?

2. Does the term “jury,” in that section, mean a jury of twelve?

*3V If it does, had the law provided such a jury when Lane’s land was taken ?

4. Did he waive his right to an assessment by such a jury ?

The constitutional provision is in these words:

“Art. 1, sec. 19. Private property shall ever be held inviolate, but subservient to the public welfare. “When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or 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; and in all other cases, where private erty shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall bo assessed by a jury, without deduction for the benefits to any property of the owner.”

In Stemble v. Hewling & Hancock, 2 Ohio St. 228, it was very elaborately argued, that this provision for a jury relates only to cases falling under the latter clause of the section, and that consequently in the cases specified in the first clause, of property taken for purposes of war or for public roads, a jury assessment is not necessary. In respect to these, it was said that the constitution is not different from that of 1802, under which it was uniformly held that the damages might be assessed by a commission. Willyard v. Hamilton, 7 Ohio (pt. 2), 111.

For reasons stated in the judgment delivered, we then expressed no opinion upon this question; but we have now considered it, with the aid of the arguments referred to, and are unanimously and clearly of the opinion, that both the jury provision and that forbidding a deduction of benefits, do apply to all the cases named in the section. There is nothing in the grammatical construction of the section, nor anything in reason or justice, that requires a more limited application; and it is certainly forbidden by a consideration of the old law, and the *evil which it is fair to presume the constitution was intended to remedy. In regard to this last consideration, see the remarks of Judge Ranney, in Work’s case, 2 Ohio St. 307.

That the term “jury,” without addition or prefix, imports a body of twelve men in a court of justice, is as well settled as any legal proposition can be. Work’s Case, and Willyard v. Hamilton, supra. That it is used in this sense wherever it occurs in the constitution, except in the section under consideration, is admitted by counsel, and could not be successfully denied. Unless, then, we are prepared to assert, that the same word means one thing in one part of the constitution, and another thing in other parts of it; that in some places it has a definite legal signification, but that in another it defines nothing with certainty, we must give to it, wherever it occurs, its ordinary common-law import. Now, is it reasonable to suppose that the framers of the constitution used the word in an indefinite and doubtful sense, and that, while carefully protecting the right of property, by adding to the pre-existing safe-guards the additional one of a jury trial, they left it to the legislature to constitute the jury of.any number, however small? For, if it may consist of six, as prescribed in the statute before us, for the same reason it may consist of three, or two, or even one, if the assembly see fit to declare so. And, as was well observed in Work’s case, “ it is no answer to say, that this would not likely be done. ' If it had heen deemed safe to leave it to the discretion of the general assembly, no constitutional provision was needed; but whether needed or not, it has been ordained by a power, which both the general assembly and this court are bound to obey.”

.Nor can it be said that the constitution means to give a jury of twelve only where the common law gives it; for where a right of way is appropriated for the use of a corporation, it is expressly declared (art. 13, sec. 5), that the compensation to the owner shall be ascertained by a jury of twelve men, in a court of record. The spirit of the constitution is thus manifest, *for there is no reason why a jury of twelve, in a court of record, should be the proper tribunal when property is taken for a corporation, and some inferior tribunal be deemed sufficient when it is taken in the name of the state. It is only by an exercise of her right of eminent domain that it can he taken at all; and a corporation, when appropriating it, is nothing more, in principle, than her agent or instrument. 1 Ohio St. 95. However taken, it must be for a public use; for no corporation can take it for a mere private use unconnected with any public purpose. Ib.

And here I may observe, that the constitutional provision last cited, affords an answer to the argument ab inconveniente that has been urged upon us; for there is no more difficulty in assessing the damages 'by a jury of twelve, in a court of justice, when property is taken for the state, than there is when it is taken for a corporation.

It also furnishes an answer to what has been said of the use of the word “jury” in divers statutes, to designate bodies of men composed of a less number than twelve; as justices’ juries, sheriffs’ and coroners’, and apprentices’, etc.; for, by requiring twelve men sitting in a court of record, it shows that no smaller tribunal was contemplated for cases of condemnation. And in this connection it may be well to remark, that the act of March 25,1851 (2 Curwen, 1672), which provided a jury of six to assess damages in road was not enacted until after the constitution was framed and the convention had adjourned. Of course, it throws no light upon the purpose of the convention.

It is true that the counsel for the applicants draws a very different inference from article 13, section 5, and argues that the specification of the number twelve in this section, affords an implication that that number is not required by section 19 of article 1, in which the number is not expressly stated. “JSxpressio unius est exclusio alterius,” is the argument.

But in addition to what has already been said militating ^against this view, it is to be borne in mind that the above maxim is by no means of indiscriminate application, and that it would be especially dangerous to rely very strongly upon it in construing the constitution, the different articles of which were drafted by different committees, who, however they might concur in a common purpose, would not be very likely to employ precisely the same language to accomplish it. The committee that drafted the bill of rights (art. 1) saw no necessity to define the word “ jury,” for they apprehended no disregard of the ordinary legal signification of the term: the committee that prepared the article on corporations were apparently less confident, or were of a more cautious temper, and they did define it.

It was in view of these and the other considerations that bear upon the question, that this court arrived at the conclusion, in Work’s case, to which we still adhere, that “if any inference is to be drawn from specifying the number of the jury [in art. 13], it is very strong evidence of the sense of the convention, that that was what had already been secured by the other sections, to suitors in other cases.” 2 Ohio St. 307, 308.

And we agree with Grimke, J., in Willyard v. Hamilton, that a jury, properly speaking, is an appendage ■ of a court, a tribunal auxiliary to the administration of justice in a court, that a presiding law tribunal is implied, and that the conjunction of the two is the peculiar and valuable feature of the jury trial; and, as a necessary inference, that a mere commission, though composed of twelve men, can never be properly regarded as a jury.

Upon the whole, after a careful examination of the subject, we are clearly of the opinion, that the word “jury,” in section 19 of article 1, as well as in the other places in the constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence, and arguments of the parties. It is hardly necessary to add, that they may be sent to inspect tho premises. That may be done in the trial of even a common-law action, when it is expedient. It is done, ♦under the act regulating the appropriation of property by corporations; an act, I may remark, in passing, that shows how easy it is to comply with the requirements of the constitution upon the subject we are considering.

Before leaving this part of the case, I would observe, to prevent misapprehension, that we entertain no doubt of the validity of an enactment that requires an assessment of the damages, in the first instance, by a commission — as, for example, the viewers of a road —provided a right of appeal is given to a court in which they may be assessed by a constitutional jury. For the same reason that a cause m'ay be tried by a justice of the peace, without a violation of the constitutional provision securing the right of trial by jury, provided such trial by jury can be obtained by an appeal, there may be an assessment by the viewers of a road or other commission, if an appeal and proper jury trial be allowed.

The next inquiry is, whether, when Lane’s property was taken, there was any law providing a proper jury to assess his damages. And we are clearly of the opinion there was not. The statute required them to be assessed, in the first instance, by the viewers, which was well enough. From their decision, when confirmed by the county commissioners, an appeal was given to the probate court in respect to the damages, and to the court of common pleas in respect to the order establishing the road. With the policy of thus dividing the proceeding into two parts, and sending one part to one forum, and the other to another, we have nothing to do. It is sufficient that each court was competent to receive the jurisdiction conferred upon it; but the fatal difficulty is, that a jury of six was prescribed for the case in the probate court; and as to the common pleas, no jurisdiction over the question of damages was given to it.

It is argued, indeed, that the common pleas, after the reversal of the order of the county commissioners, might have set the matter down for further proceedings in that court, and caused an ♦assessment by a jury of twelve to be made. But the statute gave no such authority, and to have done so, would have been to usurp a jurisdiction not conferred, by supplying an omission in legislation.

The last point made is, that Lane waived his right to a jury trial.

We see no waiver in the case. For my own part, I do not perceive how a man can be said to waive a thing which he can not have, let him demand it ever so stoutly. Had Lane required an assessment by a jury of twelve, his demand would have been fruitless, for there was no law to impanel such a jury. How, then, can he be said to have waived it? But, apart from this consideration, what evidence of waiver is there ? It is answered, that he did not appeal to the common law, from the order establishing the road, and he did appeal to the probate court, in respect to the damages.

This is all very true, but what does it amount to ? Simply to this, that he sought to get the damages to which he thought himself entitled, and, failing, refused to accept the amount assessed. Had he accepted that amount, there would be room to talk about a waiver. As it is, there is none. He was no volunteer, coming into court without being called, and selecting his own forum. On the contrary, he was on the defensive all the time. The public were trying to take his land, and he was resisting the attempt until he should be paid to his satisfaction, or the amount of his damages be ascertained in a constitutional mode.

It follows, from these views, that there is no error in the action of the common pleas, and leave to file a petition in error is therefore refused.  