Woodward Iron Co. v. Cabaniss , 87 Ala. 328 ( 1888 )

SOMERVILLE, J.

-The application is for a writ of prohibition, mandamus, or other appropriate writ, directed to the appellee, sitting as special judge for the trial of an ad quod damnum proceeding pending in the Probate Court of Jefferson county, and seeking to restrain him from further proceeding in the cause.

The ground upon which the petition rests is the alleged unconstitutionally of the present statute providing for the condemnation of lands for public uses. — Code of 1886, §§ 3207-3220. The particular objection urged is, that the statute fails to provide for the right of trial by jury, on appeal from the preliminary assessment of damages made by the award of. viewers, or commissioners; and that for this reason it offends section 7 of Article XIY of the Constitution. This section, after providing that all corporations and individuals, invested with the right of eminent domain, shall first make just compensation for the property taken, injured or destroyed by the construction or enlargement of their works, highways, or improvements, declares: “The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals, made by viewers or otherwise; and the amount of such damages, in all cases of appeal, shall, on demand of either 'party, be determined by a jury according to law.” — Const., 1875, Art. XIY, sec. 7.

Y(e concede, for the sake of argument, that the remedy here invoked would be appropriate, if this contention is correct. "We are inclined, also, to the view of appellants’ counsel, that section 3210 of the present Code, as amended by the act approved February 28th, 1889 (Acts 1888-89, p. 112), contemplates nothing more than a preliminary assessment, and not a final trial by a lawful jury. That section, as amended, authorizes a jury of as few as six jurors. A lawful jury, within the meaning of the Constitution, means a jury of twelve men, according to the usages of the common law. We shall also consider this contention well taken.

In this aspect of the case, we hold that the right of appeal to the Circuit Court was secured to the appellant, by section 3640 of the present Code. And on the authority of Montgomery So. Railway Co. v. Sayre, 72 Ala. 443, the constitutional provision invoked was so far self-executing as to entitle the appellant to demand a trial by jury in that court, to determine the amount of damages assessed. The statutes construed in that case, giving the right of appeal, do not essentially differ from those embodied in the present Code; and while the correctness of the decision is not entirely free from doubt, the court is unanimous in the opinion that it should be followed, and it is conclusive of the present case.

The petition was properly dismissed, and the judgment is affirmed.