The opinion
Mr. Justice Dickey, dissenting:
In my judgment, what is said in section 5 of the Bill of Bights, contained in article 2 of the constitution of 1870, about “a jury of less than twelve men,” in “the trial of civil cases before justices of the peace, ” does not at all affect the meaning to be given to the phrase “a jury,” as used in section 13. The subjects matter of the two sections are not the same. Section 5 declares that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.” Section 5 preserves inviolate a right heretofore enjoyed. Section 13 furnishes a new protection not enjoyed before that time. The preservation, in section 5, of the old right of trial by jury, as enjoyed before that time, is qualified by the words, “but the trial of civil cases before justices of the peace by a jury of less then twelve men may be authorized by law. ” These words plainly refer to the ordinary civil eases before justices of the peace, and can have no reference to eminent domain proceedings, for the right of trial by jury in such cases had not been enjoyed before that time. Section 13 enters upon a new subject, and furnishes a new protection to the citizen,— one not before that time secured by constitution or statute. It provides that (except where it is to be made by the State) the compensation to be paid for private property taken for public use shall be ascertained by a jury, as shall be provided by law. This new guaranty of the constitution is not qualified by any provision that a jury of less than twelve men may be authorized where the proceedings are before a justice of the peace. The declaration is unqualified. Such compensation “shall be ascertained by a jury.” The phrase “a jury,” when not qualified by the context, means “a jury of twelve men, ”—a common law jury. So the authorities all teach. “Shall be ascertained by a jury, as shall be provided by law,”—not such a jury as shall be provided by law, but a jury, a common law jury of twelve men, to be procured as shall be provided by law. I therefore think these proceedings faulty for want of the verdict of a jury of twelve good and lawful men.
If it be the constitutional law of Illinois that the legislature has unlimited power in conferring jurisdiction upon justices of the peace, exclusive jurisdiction in all condemnation cases may be conferred upon justices of the peace without appeal, and if, in all such cases, a jury of less than twelve may be authorized, a jury of two or three men may be authorized to ascertain the compensation in all such cases, no matter what may be the magnitude of the interests involved. What, then, would he the value of the guaranty that such compensation shall be ascertained by a jury? In my judgment, to so hold fritters away this guaranty of the constitution, and renders it practically nugatory.