In Copp v. Henniker, 55 N.H. 179, decided in 1875, it was held, upon the greatest consideration, that the right of trial by jury is secured to towns by the constitution. So recent a decision by this court of a question of such magnitude ought not to be reconsidered, much less overturned, except upon an occasion of the gravest moment. The present is not of that character. If towns did not have the right when this motion was made (November, 1879), they have it now under the act of August 19, 1881 (Laws 1881, c. 106). If the defendants have no right to a jury trial, no more has the plaintiff a right to a reference. The motion is addressed to the discretion of the court (G.L., c. 231, ss. 9, 10, Dodge v. Stickney,61 N.H. 607). It should be denied without considering the constitutional question. No legal right of either party is involved. A decision overruling Copp v. Henniker will have no effect except to authorize the court to send this case, and such other like cases as were pending when the act of 1881 was passed, to a referee, notwithstanding the town's objection. Never since the adoption of the constitution of 1792 until the making of this motion, or, at least, until Copp v. Henniker came before the court, has it been denied or questioned that art. 20 of the bill of rights guarantees to towns the right to trial by jury. A practical construction of the constitution, acquiesced in for a century by the legislature, by the courts, and by all parties to judicial proceedings, ought not to be disturbed unless it is shown to be clearly wrong. The action of the legislature in 1881, there is reason to believe, was prompted, not for the purpose of conferring upon towns a right which they did not possess under the constitution, but to remove the doubt of its existence which this motion raised. The unquestioned practice, immediately after the constitution took effect and ever since, of trial by jury in the numerous highway suits is satisfactory if not conclusive evidence *Page 224 that the framers of the constitution did not understand such trials to be within the exception of "cases in which it has been heretofore otherwise used and practised." Towns have been liable to travellers for injuries caused by defective highways, substantially as they are at present, ever since the provincial act of 1719. Prov. Laws, ed. 1726, p. 151, ed. 1761, p. 116, ed. 1771, pp. 154, 155; Act of February 17, 1786; Laws, ed. 1797, p. 313; Act of July 3, 1829, Laws, ed. 1829, c. 48; Laws, ed. 1830, p. 580; Rev. Sts., c. 57, s. 1; Gen. Sts., c. 69, s. 1; G.L., c. 75, s. 1. There is good reason to believe that in actions on the statute of 1719 the right of trial by jury was secured to the towns by the provincial laws. Copp v. Henniker, 55 N.H. 179, 190-192. However that may be, we have no evidence, or even tradition, that the actions were not in practice tried by jury. If the practice before the adoption of the constitution was different from what it has been since, no satisfactory reason has been suggested, or is perceived, for the change. If it was the same, these cases come within the very letter of art. 20 of the bill of rights, and it makes no difference that towns are political subdivisions of the state.
The fundamental ideas in the argument for the plaintiff seem to be, that a municipal corporation is a part of the sovereign, and cannot be sued without the sovereign's consent; that the right of trial by jury was reserved by the people in art. 20 when they formed themselves into a government; and that the reservation cannot be construed into a grant of the right to the sovereign. In determining the constitutional rights of municipal corporations it is necessary to inquire with what duties they are charged and what powers they possess.
Towns are political subdivisions of the state, created for the more convenient administration of the government. "Strictly, a municipal corporation is an institution designed to regulate and administer the mere local or internal concerns of the incorporated place in matters pertaining to it, and not relating directly to the people of the state at large. But in this country, much more generally than in England, it is the practice to make use of the municipality, or of its officers, as agencies of the state for the exercise, on its behalf, of public, in addition to corporate, duties and functions." 1 Dill. Mun. Cor., 3d ed., p. x of preface. They possess a double character — the one, governmental, legislative, or public; the other, proprietary or private. Ib., s. 66; Eastman v. Meredith,36 N.H. 284, 292. As public corporations, they are empowered to hold property, and are invested with many powers to enable them to answer the purposes of their creation. They may be divided, united with other towns, or otherwise modified, as the public exigencies may require. But "in the incorporation of a town there is no implied power reserved to take its property arbitrarily and give it to another town. Corporations, both public and private, may be conceded to stand in this respect on the same *Page 225 ground as individuals." Bristol v. New Chester, 3 N.H. 524, 533, 535; Terrett v. Taylor, 9 Cranch 43; Dartmouth College v. Woodward, 4 Wheat. 518, 663. The legislature cannot compel one town or city to contribute to the payment of the debts of another (Matter of Lands in the Town of Flatbush, 60 N.Y. 398), to contract a debt for local purposes against its will (People v. Detroit, 28 Mich. 228, People v. Chicago, 51 Ill. 17, People v. Batchellor, 53 N.Y. 128), nor create a debt from one county to another if nothing was due at the time of the passage of the act (Hampshire v. Franklin, 16 Mass. 76, 84). Grants of property to public corporations cannot be resumed by the sovereignty. Terrett v. Taylor and Dartmouth College v. Woodward, supra. When the state deals with a municipal corporation on the footing of contract, the municipality is to be regarded as a private company. Richland v. Lawrence, 12 Ill. 8. These cases are sufficient to show that a municipal corporation does not possess all the immunities and rights of the sovereignty of which it is a part.
If the guaranty of a jury trial, in cases not within the exception in art. 20, does not apply to towns, no other guaranty of the constitution applies to them. They are protected by all or by none of the provisions of that instrument. But a town's property cannot be taken for public uses without compensation. Bill of Rights, art 12; Bristol v. New Chester,3 N.H. 524, 534, 535; Londonderry v. Derry, 8 N.H. 320. A right of action for the support of a pauper vested in one town against another cannot be "constitutionally cut off by any legislative enactment, as it would be retrospective in its operation and therefore unconstitutional and void." Art. 23; Pembroke v. Epsom, 44 N.H. 113, 114. Acts of a resident in a town which, at the time they took place, did not give him a settlement in that town, cannot be made to have that effect by subsequent legislation. Dunbarton v. Franklin, 19 N.H. 257, 261, 263. An act providing that a part of the expense of a new highway in any town may, in certain cases, be imposed upon neighboring towns, cannot constitutionally apply to pending cases. Kennett's Petition, 24 N.H. 139. A fund, granted by the state to a town, cannot constitutionally be subsequently declared by act of the legislature to belong to individuals. Spaulding v. Andover, 54 N.H. 38,52-55. Towns are protected by art. 15 of the bill of rights, and cannot be held to answer for any offence until the same is fully and plainly, substantially and formally, described. State v. Canterbury, 28 N.H. 195,228. All these cases must be overruled in order to hold that towns, in "controversies concerning property," are not entitled to the constitutional guaranty of trial by jury, unless it is shown that in such cases it was "otherwise practised" before the constitution was adopted.
It is impossible to reconcile the foregoing decisions with the doctrine that the bill of rights was framed for the protection of *Page 226 personal rights of individuals exclusively. It must follow that a municipal corporation is included within the protection afforded by articles 16, 17, and 18, which provide that no subject shall be liable to be tried after an acquittal, for the same crime or offence (art. 16); that no crime or offence ought to be tried in any other county than that in which it is committed (art. 17); and that all penalties ought to be proportioned to the nature of the offence (art. 18).
"In all controversies concerning property, and in all suits between two or more persons," except, c., "the parties have a right to trial by jury." The language is broad enough to include towns. In its literal terms it is applicable to them. Indeed, the words "in all controversies respecting property" have no significance unless they are applicable to corporations. Trial by jury is secured to individuals as perfectly without as with these words. No reason has been given, no reason can be given, why constitutional guaranties of property rights should not apply as well to artificial as to natural persons, as well to public as to private corporations, — in short, to all entities endowed by law with the capacity of holding property. Literally interpreted, they apply to them. Why should they be deprived by construction of the protection which the language is broad enough to secure, and which is as important to them as to individuals? Upon what ground can it be assumed that the framers of the article did not intend that the property of towns, as well as of persons, should be protected?
Towns can never be absolute owners of any property. They hold the legal title, but always in trust for the purposes appointed by law, and for the benefit of the citizens, who are the beneficial owners. Every tax-payer is a cestui que trust, and has a direct and valuable interest in the property. His individual estate is directly liable for the town debts. How can it be inferred that the makers of the constitution, where they used language pertinent for the purpose, did not intend to protect these rights, as well as the more immediate and direct rights of property ?
The people have stipulated that the right of trial by jury in all controversies respecting property "shall be held sacred," and, "in order to reap the fullest advantage of the inestimable privilege of trial by jury," that none but qualified persons shall be appointed to serve as jurors. The solicitude thus shown by the framers of the constitution may properly be considered in its interpretation. Any restriction or limitation of this "inestimable" privilege not warranted by the clear words of the instrument should come, not through judicial construction, but from the direct action of the people.
In Copp v. Henniker, 55 N.H. 179, 192, Ladd, J., says, — "In giving to the party damaged a right of action against the town, without specifying the form of the remedy, or the court in which it was to be sought, or the course of the judicial proceedings to be *Page 227 adopted, the legislature gave a right of action to be pursued according to the usual practice in cases of torts, and the ordinary course of the common law. It has never been doubted, so far as I am aware, that the statute of 1786, and all its subsequent amendments, give both parties a right of trial by jury, not, indeed, in express terms, but by natural and necessary implication. Of the universal understanding on this point there can be no doubt. It is impossible to hold that the act of 1786 did not change the previous practice, if the previous practice was to try this class of cases without a jury. And the decision in Baker v. Holderness, 26 N.H. 110, 114 — where the error of Backus v. Lebanon [11 N.H. 19], was corrected — is conclusive upon the point that the right to a trial by jury, existing in this class of cases, from 1786 to the adoption of the constitution, does not leave this class `among the cases in which it has been heretofore otherwise used and practised,' but shows it to be among the cases in which this mode of procedure is to be held sacred.
"Pierce v. State, 13 N.H. 536, 542, is also an authority to the point that `heretofore' in the constitution means before 1792, and that `the laws which have been heretofore adopted, used, and approved in the province, colony, or state of New Hampshire, and usually practised on in the courts of law,' refers to the provincial laws as modified by statutes, passed in the period between 1776 and 1792. It cannot be doubted that the act of 1786 gave the right to a trial by jury in this class of cases, and that this case is not one of the `cases in which it has been heretofore otherwise used and practised,' within the meaning of the constitution."
To the views thus expressed by Judge Ladd there is no satisfactory answer.