
    SUSPENSION OF RIGHT TO TAKE TOLLS.
    [Circuit Court of Hamilton County.]
    The Ohio Turnpike Company v. Ernest Waechter; heard on error to the Court of Common Pleas of Hamilton County. The Ohio Turnpike Company v. C. M. Edwards et al; heard on error to the Court of Common Pleas of Clermont County. State, ex rel C. B. Nichols, v. John D. Martin; quo warranto from Clermont County.
    Decided, December 16, 1903.
    
      Turnpikes — Suspension of Right to Take Toll Upon — Must Be hy Due Process of Law — Impanneling' of Jury — Without Express Authorisation of Statute — Inherent to Jurisdiction — in Quo Warranto— Constitution Loes Not Execute Itself.
    
    1. A suspension of the right to take tolls under R. S. 3484 and 3485 is a taking of property no different in kind, only less in degree, than that defined in the case of Turnpike Company v. Parks et al, 50 O. S., 568, and as such can only be had by due process of law.
    2. The Constitution does not execute itself, and where in a special proceeding a jury is necessary, provision should be made therefor by statute.
    3. The right to impannel a jury to try issues of fact is inherent in the exercise of jurisdiction in quo warranto.
    Jelke, J.; Gifeen, J., and Swing, J., concur.
   These three eases growing out of the same property, the Ohio turnpike, and presenting substantially the same questions, will be considered, together.

The first two, error cases, were begun in magistrates’ courts and were prosecuted under R. S. 3484 and 3485. In both cases it was contended that a suspension of the right to take tolls was a taking of private property, and under the ease of Turnpike Company v. Parks et al, 50 O. S., 568, was in violation of :

“1. Section 5, Article 1 of the Constitution: ‘The right of trial by jury shall be inviolate. ’
“2. Section 16, Article 1 of the Constitution: ‘Every person, for an injury done him in his land and goods, shall have remedy by due course of law.’
“3. The provision, of Section 1, Article 14 of the amendments of the Constitution of the United States, that no person shall be deprived of property without due process of law.”

In the Edwards case in the Common Pleas Court of Clermont County, the court offered to impannel a jury to try the issues of fact as to the condition of the road, etc., but counsel for the turnpike company, while contending that said company could not be deprived of its property without due course of law, that is, without the intervention of a jury, nevertheless denied the power of the court to impannel such jury without express authorization by statute so to do.

Dickman, J., in the Parks case, supra, said:

“The right to take toll upon a turnpike is a franchise, and when properly exercised becomes a useful and valuable right— a source of income and the means of reimbursing the company for keeping the road in repair for safe and convenient use. And this franchise, which in the case at bar it is sought to extinguish, is to be regarded as property in the enlarged sense of the term.
“A franchise is property, and nothing more; it is incorporeal property, and it is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment.” Daniel, J., in West River Bridge Company v. Dix, 6 How. (U. S.), 507, 534, cited in the Parks case, supra.

We are of opinion that a suspension of the right to take tolls is a taking of property no different in kind, only less in degree.

There are two contentions on behalf of the plaintiff below:

First. That this is not an absolute taking of property but a sequestration of the same to enforce the court’s order as to repairs, in analogy to a mesne process from a court of chancery. The answer to this is that this is not an equitable proceeding because it is begun, and, in default of appeal, may be ended in the court of a justice of the peace who has no equitable jurisdiction. In a proceeding at law, then, property can only be taken by due course of law.

Second. That an appeal is provided by R. S. 3485 to the court of common pleas, and that a jury may be had in that court. In the Waeehter case this was denied by the court below.

If we find that this proceeding is the taking of property and can only be had under the Constitution by the intervention of a jury, as the Constitution does not provide for the impanneling of a jury and as the Constitution does not execute itself, we must look to the statutes to find what provision, if any, is made for a jury in such proceeding. The provisions for the impanneling of a jury by the common pleas court in criminal cases can not apply. R. S. 7267-7275-7276, etc. Neither can the general provision of R. S. 5130 in civil actions apply.

“Issues at law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific, real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided. ” R. S. 5130.

Now we find that the jury on appeal in road cases is specially provided for in R. S. 4700 (which saves the constitutionality of action by viewers). We find further that in all special proceedings in which a jury is needed, special provision is made for the same by statute, viz., condemnation, bastardy, will contests, etc. In the absence of such provision we fail to see how the constitutional right of the turnpike company can be secured to it.

The same objection is urged by counsel for the turnpike company in the quo warranto case. In this case the taking of property sought is absolute, and unless the issues of fact can be determined by a jury impanneled by and under proper instructions from a court of competent jurisdiction, under the Parks case, must fail.

. Jurisdiction in quo warranto is conferred by R. S. 6768. Where the constitutional right to a jury trial is recognized, the right to impannel a jury to try issues of fact is inherent in the exercise of jurisdiction in quo warranto (23 A. & E. Encyl. of Law, p. 626). It pertains to the jurisdiction conferred. If then in this ease in this court a jury were demanded we would proceed to impannel one as provided in R. S. 5168. The eonstitutional right being thus secured in this kind of an action in this court, the objections of the Parks case are avoided and this court in a proper case could forfeit defendant’s franchise.

We are of opinion that when the individuals, defendants herein, took this property under the act of May 5, 1868 (65 O. L., 136), the same vested, “in them in the same manner” as franchises vested in the original corporators and subject to the same visitation on the part of the state through its courts as obtained against the original corporation, and this action would lie either under R. S. 6760 against a person who unlawfully holds a franchise, or R. S. 6761 against a corporation when it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges and franchises, or when it has •misused a franchise, privilege or right conferred upon it by law.

In quo warranto the court has the widest latitude of discretion in granting and withholding the writ in consideration of general justice, public and private, and can take into consideration all the conditions and even the protestations of what defendants purpose doing immediately.

In view of the changes which brought about the conditions complained of, the promise of defendants to make immediate . repairs and restoration, the season of the year, etc., the court will give the defendants until April 1st, 1904, to repair the road to conform to the requirements of R. S. 3477 — “at least sixteen feet (in width) shall be made an artificial road composed of stone, gravel, etc., well compacted together in such a manner as to secure a firm, even and substantial road” — and proceedings herein will be stayed until then.

We are of opinion that R. S. 3484 and 3485 do not afford what the Constitution vouchsafes, and the error cases will be reversed.  