
    The Inhabitants of Mendon versus The County of Worcester.
    Where the right of a trial by jury is given to a party, such trial necessarily implies an effectual trial resulting in a verdict. And therefore, where a town was entitled by statute to a jury in relation to the locating of a highway, and the jury empannelled were unable to agree and were discharged, it was held, that the town was entitled to another jury, although the statute made no express provision for such a case.
    A jury in sucli a case not being able to agree, the officer who empannelled them discharged them and made return of his doings to the Common Pleas, and that court certified the facts to the county commissioners ; and the commissioners having refused the application of the town fur another jury, this Court awarded a mandamus commanding them to issue their warrant for empannelling a new jury.
    Whether in the case of no verdict being agreed upon, the officer ought not regularly to mzilte his return thereof to the county commissioners instead of the Common Pleas, quare.
    
    Where such jury do not agree, the officer by whom they were empannelled and discharged, is not authorized to empannel a new jury ; nor has the Court of Common Pleas authority to issue a new warrant for that purpose.
    This was a petition to this Court at March term 1830, in Suffolk, in which the inhabitants of Mendon represent, that a petition was presented to the county commissioners of the county of Worcester, by Amariah Chapin and others, upon which the commissioners, at a meeting held on the second Tuesday of September 1829, laid out and established a public highway partly in the town of Mendon ; that at the same meeting the inhabitants of Mendon preferred to the commissioners a petition, representing that they were aggrieved by such location, and praying that a jury might be empannelled to revise and inquire into the matter and do all other acts necessary in the premises, for finally fixing and determining the location of the road within the limits of Mendon ; that the petition was granted and a warrant was issued by the commissioners on September 25th, 1829, requiring a coroner to empannel a jury, by virtue of which warrant a jury was empannelled, who viewed the road described in the warrant, and such other routes as were shown to them, and having heard the parties, inquired into the matter as to the location of the road, but were not able to agree upon a verdict, and were thereupon discharged ; of all which the coroner made return, with the warrant, to the Court of Common Pleas held on the first Monday of December 1829 ; whereupon that court ordered that certificate should go to the commissioners, certifying to them the above facts, with a copy of the warrant and of the coroner’s return thereon ; that the certificate and copies having been transmitted to the commissioners at a meeting held on the fourth Tuesday of December 1829, the inhabitants of Mendon moved the commissioners, at that meeting, that a’warrant should be issued for empannelling another jury for the purposes before mentioned, which motion was overruled ; — and the inhabitants of Mendon pray that a writ of mandamus may be issued, commanding the county commissioners to cause a jury to be empannelled for the same purposes.
    The facts stated in the petition were substantiated by the records of the Common Pleas and of the county commissioners ; from which it further appeared, that the jury were empannelled on the 9th of November, 1829, and that after having been by themselves twelve hours after the parties had been heard, and not being able to agree, they were discharged by the coroner on the 13th of November.
    
      Jan. llih, 1830, in Suffolk,
    
    
      W. S. Hastings, in support of the petition.
    By St. 1786, c. 67, § 4, 5, the court of sessions, on complaint of a person aggrieved by the doings of a committee in locating a highway or estimating damages, are empowered to hear and finally determine the same by a jury. The St. 1802, c. 135, § 6, extends the right to a jury in such cases, to towns and other corporations. In St. 1827, c. 77, § 12, establishing county commissioners, it is enacted, “ that no petition for a jury, in relation to the locating, altering, or discontinuing any highway, or to the estimating damages, shall be sustained, unless it is presented as soon as the regular meeting of the commissioners, next after that at which such laying out, alteration, or discontinuance is established. And such jury shall, in all cases, consist of twelve persons, &c. and their verdict shall be agreed upon within three months from the time that such jury may be ordered, and shall be returned to the Court of Common Pleas for the county in which such petition is preferred, to be holden next after the same shall be agreed upon; and the said court shall adjudicate upon said verdict, and may set the same aside for good cause shown, and the clerk of the said court shall return a certified copy of said verdict, with the adjudication of the said court thereon indorsed, at the meeting of the commis sioners next after .the term of said court at which such adjudication shall be had ; and in case the said verdict shall be set aside, the commissioners shall, on application, order a new jury and thereupon the same proceedings may be had, as is herein before provided,” &c.
    The 15th article of the Bill of Rights declares, that “ in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise used and practised, the parties have a right to a trial by a jury.”
    A question of damages is a question concerning property; and as the statutes make the same provision for a jury on a question of location as on a question of damages, the same construction is to be given in both cases.
    The present case does not come within the exception in the article of the Bill of Rights above recited. Prov. St. 5 W. & M. c. 8. (Anc. Chart. 268 ;) Prov. St. 1 Geo. 2, c. 2, § 2, (ibid. 459 ;) Prov. St. 30 Geo. 2, (ibid. 612.)
    By that article, then, the petitioners are entitled to a trial by jury ; and such trial is universally understood to be a trial re-suiting in a verdict. In civil and criminal cases, even when life is at stake, it is the practice to discharge the jury, when they cannot agree, and a new trial is had. Fisher v. Dale, 17 Johns. R. 342, 343 ; St. 1707, c. 140, § 15 ; Commonwealth v. Purchase, 2 Pick. 521 ; The People v. Goodwin, 18 Johns. R. 187 ; The People v. Olcott, 2 Johns. Cas. 301 ; United States v. Perez, 9 Wheat. 579. Here the jury were discharged by the coroner, who exercises some judicial powers in cases of this kind. Wood v. Ross, 11 Mass. R. 278.
    The language of the statutes on this subject, also requires that there should be a verdict. . St. 1786, c. 65, § 4, 5 ; St. 1818, c. 121, § 2.
    But it is contended on the other side, that by St. 1827, c. 77, § 12, the petitioners, having had a jury who did not agree upon a verdict, are precluded from having another jury ; or, in other words, that the disagreement among the jury is equivalent to an agreement upon a verdict against the petitioners.
    This section is to be considered in connexion with the constitutional provisions and the general system of legislation upon the same subject matter. Holbrook v. Holbrook, 1 Pick. 254 ; 1 Kent, 433. The object of the statutes on this subject, enacted prior to that of 1827, obviously was, to secure to the citizen aggrieved, &c. a trial by jury in the same manner and to the same extent as he enjoyed this right in all other cases. The intent of the statute of 1827, was not to create new powers as to the laying out of highways, or to limit rights and remedies given to the citizen by former laws, but to establish a new tribunal, and to vest in it the jurisdiction formerly exercised by the court of sessions. The verdict is to be returned to the Common Pleas, and it was necessary to fix a time when this should be done ; but the provision is merely directory to the commissioners and the officer, that the jury shall be emparmelled so as to hear and make up their opinion before the expiration of three months, and is not a limitation of the right to a verdict. Pond v. Negus, 3 Mass. R. 230; Commonwealth v. Smith, 11 Mass. R. 456. If it was the intent merely to fix a time within which the jury should hear the case, that intent must prevail over the literal sense of the terms used. 1 Kent, 432; Bac. Abr. Statute, I, 4, 5. The power to grant a jury being vested in the county commissioners by the 12th section of the statute of 1827, every thing necessary to attain the end is implied. 1 Kent, 433. This section relates to a remedy given to the citizen whose property is appropriated to the public use against his consent, and it is to receive an equitable interpretation.
    No provision is made in any statute upon this subject, that if the jury cannot agree at all or within three months, the adjudication of the commissioners shall be affirmed ; but the 5th section of St. 1786, c. 67, providing that the verdict of the jury shall “finally fix and determine the place of the highway,” remains unrepealed.
    The St. 1795, c. 74, for the support and regulation of mills, and other statutes, providing for trials, are silent as to the effect of a disagreement among the jury ; and the reason is, that all these statutes were made with reference to the well known practice of courts of law, to discharge the jury when they cannot agree, and to put the cause to another jury.
    The legislature may prescribe the manner in which the party may exercise his constitutional right to a jury, but they cannot limit or restrict the right when obtained in due form of law, either directly or by any restraint in prescribing the mode of exercising the right.
    Tufts, for the respondents.
    The right of the petitioners depends upon the construction of St. 1827, c. 77.
    It is apparent from numerous provisions in this statute, that the legislature intended to provide an easy and expeditious mode of laying out highways, and that after the decision that a highway was required as a matter of public convenience and necessity, the object was to have such highway constructed with as little delay as possible.
    It was clearly the intention of the legislature to limit to three months the period in which the jury were to agree ; 1. because the language of the act is express, “that their verdict shall be agreed upon within three months from the time that such jury may be ordered ; ” and 2. because no provision is made for any future proceeding in regard to the jury, unless they agree upon a verdict and return a verdict to the next Court of Common Pleas.
    
      It is apparent that the legislature intended to close all future proceedings, if the jury did not agree on a verdict in three months, in relation to any alteration of the located way : —
    1. Because the statute makes no provision for returning any thing to any court, if no verdict is agreed upon in that time ; —
    
      2. Because the Court of Common Pleas have nothing to adjudicate upon, unless a verdict is returned; — 3. Because no provision is made for another jury, except in case the verdict is set aside by the Common Pleas; — 4. Because the statute allows of no longer delay before making the road, than till the meeting of the commissioners at which the verdict is to be certified ; and they are then to allow the town a reasonable time to make the road, not to apply for another jury ; — 5. Because the statute provides, that “ if said jury shall not alter said way,” the petitioners shall pay costs.
    There was nothing for the Common Pleas to act upon, because there was no verdict returned ; and if that court had nothing to adjudicate upon, there was nothing to certify. But if that court ought to certify to the commissioners, the proceedings of the jury, whatever they might be, with some adjudication thereon, then the petitioners ought to have required the Common Pleas to adjudicate and to order another jury and to direct the commissioners to issue a warrant therefor ; because the statute does not direct the commissioners to issue another warrant, or to sustain another petition ; but after they have delayed till the time when the adjudication and verdict are to be certified to them by the Common Pleas, they are directed to act and are bound to act. The statute clearly contains no guide for the commissioners, to direct them how to grant another jury ; they are not made the judges to adjudicate upon the verdict or upon any proceedings of the jury, but are merely the ministerial officers to execute the orders of the Common Pleas. If the officer has power to discharge such a jury, after they have been together a reasonable time, the petitioners should have applied for another jury within the three months, either to the officer or to the Court of Common Pleas. The legislature intended to say, that if a jury did not agree in three months to alter the location, the presumption should be that the petitioners had no reason to complain, and the public should not suffer by a longer delay. to
    
      The case of a petition of a town for a jury is not recognized by any statute before the constitution was adopted, and it is one of those cases excepted by the Bill of Rights, “in which it has heretofore been otherwise used and practised.” Colony Laws of 1630, 1641, (Anc. Charters, 127 ;) Prov. St. 5 W. & M. c. 8, (ibid. 269 ;) Prov. St. 1 Geo. 2, c. 2, (ibid. 459 ;) Prov. St. 10 Geo. 2, c. 2, (ibid. 505 •,) Prov. St. 31 Geo. 2, (ibid. 612, 613.) The first statute which allowed a town the right to a jury to inquire into the location of a road, is that of 1802, c. 135. The fact, too, that by the provincial laws towns were bound to pay, not only for making the road, but also all the damages due to individuals whose property was invaded, and yet no provision was made for an appeal on their part to a jury for relief, shows conclusively that this case was never contemplated by the framers of the Bill of Rights, as a controversy about property to be tried by a jury, or, at least, that .it was considered as coming within the exception before mentioned.
    This case does not present such a controversy about property, as gives the right to a jury. The article of the Bill of Rights extends only to the case of a direct violation of the right of private property, and not to the incidental appropriation of the property of the citizens in the shape of a tax, charge or subsidy for the support of government. Callender v. Marsh, 1 Pick. 431.
    If the statute is unconstitutional in not securing a trial by jury until there shall have been a verdict, then clearly this process cannot be sustained, because the statute cannot be executed. Stevens v. Middlesex Canal, 12 Mass. R. 466 ; Callender v. Marsh, 1 Pick. 431.
    My 1831.
   Shaw C. J.

drew up the opinion of the Court. This is a petition for a writ of mandamus to the county commissioners of this county, requiring them to issue a new warrant for empannelling a jury, upon the grounds and for the reasons set forth in the petition.

This question turns upon the construction of the 12th section of the Stat. 1827, c. 77, providing for the appointment and regulating the powers and duties of county commissioners. The facts appearing upon the record are, that the commissioners, upon the application of the town of Mendon, and in pursuanee of the provisions of the statute, issued a warrant to the coroner, requiring him to summon and empannel a jury, to determine the final location of the highway in question, and that the officer empannelled a jury accordingly, who, after being together many hours, and finding that there was no probability that they could agree upon a verdict, certified that fact to the Court of Common Pleas, who thereupon remitted the proceedings to the county commissioners. The commissioners, believing that they had no authority under the statute to issue a second warrant, refused to do so, whereupon this petition was filed in this Court, and the question is, whether, in that state of the proceedings, they had the power to issue another warrant.

It is quite manifest that it was the intent of the legislature, in the act under consideration, to give to the party aggrieved a trial by jury. This is manifest as well from the terms of the act itself, as from a very long series of legislative provisions upon the same subject, from the earliest times. And it is observable, that in its terms, the statute rather recognizes and regulates' the right of trial by jury, than confers it. It commences by negative words, providing (§ 12) that no petition for a jury shall be sustained, unless, &c. and proceeds to regulate the proceedings. Considering that by the terms of the statute, construed in reference to the previous legislative provisions upon the same subject, and to the 15th article in the declaration of rights, we think it a reasonable construction of the statute that such trial was to be effectual, to which end it must result in a verdict, upon which the further proceedings contemplated by the statute should be-based. It is incident to a trial by jury, that the jury may disagree, in which case, by analogy to all other cases of jury trial, the proceeding is nugatory and a new trial must be had. The statute enacts, that the verdict shall be agreed upon within three months. This we think must be taken in relation to the subject matter ; it cannot be imperative, and must therefore be understood to provide, that no longer time than three months shall be allowed for that purpose, in which time, if no verdict is agreed upon, their powers are at an end. It is true that the statute makes no provision in terms, for a second jury, where the first have disagreed ; but provision is made for a very analogous case. The verdict is to be returned to the Court of Common Pleas, who are to adjudicate upon it, and may set it aside, in which case they are to certify the proceedings to the county commissioners, who shall on application therefor order a new jury. The cases where the jury have found no verdict, and where they have in form agreed upon a verdict, but where the proceeding in court has shown, that though in form a verdict, the same, for some good cause, is set aside and thereby rendered wholly void, though not identical are closely analogous.

That the statute cannot have a literal construction, consistently with the intention of the legislature, we think is quite manifest. It has been argued, that if no verdict is agreed upon within three months, then the adjudication of the commissioners is to stand, unaffected by the claim for a jury. We think that a contrary conclusion might with equal reason be drawn from a literal construction of the statute. In the section already quoted it is provided, that whenever the commissioners shall order a jury, the way so laid out or altered shall not be opened or worked, and the way so discontinued shall not be closed up, until after the meeting at which a certified copy of the verdict of such jury shall be returnable. This manifestly implies that such verdict is to be the basis of their future proceedings, for no such verdict can be returnable until an actual verdict is had. But we think the statute must have a reasonable construction, with reference to the obvious purposes intended to be accomplished, the known rights intended to be secured, a just regard to other and previous legislative enactments for which the present act was intended as a substitute, and analogy to other similar cases ; and that when the measure contemplated has proved fruitless and unavailing, it is to be treated as a nullity, and a new jury must be ordered. This we think a just and necessary implication from the provisions of the act. The statute, by authorizing a trial by jury, necessarily refers to the known rules and principles which govern that mode of trial. There is nothing in the act which requires the jury to be unanimous ; and yet it would not probably be contended, that any decision of a jury, other than a unanimous one, would satisfy the requirements of the act, such being one of the known incidents of a jury trial. It has been contended that the officer might have discharged the jury and empannelled another; but we see no ground upon which such an exercise of authority on his part could have been justified.

It is said that the Court of Common Pleas should have issued a new warrant. But we think the authority conferred on that court a limited one, that of adjudicating upon the validity and correctness of the verdict, and certifying it with the result to the commissioners.

Perhaps where no verdict was in fact agreed upon, it might have been more regular for the officer to make his return to the county commissioners, from whom his warrant issued. But of this we give no opinion. We think it did sufficiently appear to the commissioners that no verdict had been given, and therefore that they had authority to order a new jury. That the authority and duty to issue such warrant devolved upon them, is, we think, fairly to be inferred from the consideration, that in ■ the cases particularly provided for, where a jury is to be ordered, as upon an original application for a jury, and where a verdict is set aside by the Common Pleas, the warrant is to be issued by them ; and also because in most respects they are substituted in place of the court of sessions, who exercised extensive judicial and ministerial powers, and by whom all similar warrants under former statutes, in pari materia, were issued.

On the whole, the Court are of opinion, that the statute intended to secure, to parties situated in the condition of the petitioners, the right of a trial by jury, that such trial necessarily implies an effectual trial resulting in a verdict, that a hearing before a jury empannelled for the purpose, but who cannot agree in a verdict, is not such trial, that a power must necessarily rest somewhere, to order a new hearing in such case, that by reasonable construction of the statute, and analogy to other cases, such power is vested in county commissioners, and that as they declined to exercise it, in a case where the petitioners were entitled to the benefit of it, the writ of mandamus ought to issue as prayed for. Mandamus awarded. 
      
       The event of a disagreement of the jury under the circumstances of the above case, is now provided for by Revised Stat. c. 24, § 35, 36. See Anthony v. County Comm. of Berkshire, 14 Pick. 189.
     