(dissenting in part) — This proceeding is prosecuted by the relator, a simple contract creditor of the state. There is no party in interest before us whose interest it is to challenge the act of the legislature. This is a moot case, pure and simple, and the right of the relator to recover is in no way affected by the constitutional questions raised by the parties and discussed by the court. The legislature having created the industrial insurance commission, its power to organize cannot be questioned by any one who is not affected by the terms of the law, and such expenses as it may incur are proper charges against the state and may be collected without reference to the power of the commission to levy a tribute upon certain kinds of business, or to make disbursement of the funds under the provisions of the act.
Without questioning or discussing the conclusions of the court upon the first three propositions advanced, with all of *213which I agree, the fourth proposition should not now be decided for the very palpable reason that our decision is binding upon no one, not even upon the court. No one will contend that it is of any concern to a furniture dealer who is seeking to collect his account whether an injured workman is to be deprived of the right to submit his cause to a jury of his peers. The principle is too important to be mooted by the court, for some day a real party in interest will be before us — either an employer who feels aggrieved at the operation of the law, or a workman who has received injuries which the accepted schedules will not compensate; and we will be put to the duty of deciding the case without reference to our present decision, so that the Federal questions involved may pass for final hearing to the supreme court of the United States.
The right to recover damages for personal injuries suffered in consequence of the negligence of another was an admitted right at common law, so that the question whether the seventh amendment to the constitution of the United States, which preserves the right of trial by jury in all cases maintainable at common law which are begun in the courts of the United States, would not compel a Federal court to ignore our statute, and the consequent question, whether a party assessed could be compelled to contribute to the indemnity fund unless he is to be protected from all suits of like character, becomes most material, and it is to be hoped that we will have an early opportunity to meet these issues in a proper case.
That the people of the state of Washington can take away a right of action, or abolish the right of trial by jury, I have no doubt, but whether the legislature can do so without the warrant of the whole people expressed by way of amendment or repeal of sections 3 and 21 of article 1 of the state constitution, is a grave question which is not discussed in the opinion of the court. The right of trial by jury has ever been regarded as the very sinew of liberty. It was the cardinal *214principle of the great charter, and “It is worthy of note that all that is extant of the legislation of the Plymouth Colony for the first five years, consists of the single regulation ‘that all criminal facts, and also all manner of trespasses and debts between man and man, shall be tried by the verdict of twelve honest men, to be impaneled by authority, in form of a jury upon their oath.’ 1 Palfrey’s New England, 340.” Cooley’s Const. Limitations (6th ed.), p. 389, n.
The right is asserted in every state constitution. Sec. 21, supra, provides that “the right of trial by jury shall remain inviolate.” No distinction is made between civil and criminal cases; indeed the additional text would indicate that no distinction was intended. This guarantee has been held by this court to apply to all civil law actions maintainable at common law. State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. 39. I am a firm believer in trial by jury and am of equal faith that the will of the people as declared in their written constitution is binding upon legislatures as well as courts, until the people by like adoption express a contrary will. We should not decide otherwise except at the suit of a proper party.
The present law seems to be greatly to the advantage of the employer for whom an easy method of discharging an obligation to his injured employee is provided, but whether the legislature can take from the workingman his right to have the amount of his compensation fixed by an authority less than the very people, who have said “the right of trial by jury shall remain inviolate,” is for future hearing.
I have not advanced these observations in the way of objections, for the result of the court’s opinion is a consummation for which I have devoutly hoped; but to indicate merely that our decision upon the fourth proposition — the right of trial by jury — is not settled by this decision and should not be so regarded, and further, in the event that it be finally held that a jury trial cannot be dispensed with, under our present constitution, that the objection may be easily over*215come without doing violence to the purpose or principle of the act, and without amendment to the constitution, by providing that, in the event of a dispute as to the amount of compensation, a jury shall be called to try that issue and that its verdict shall be conclusive.
Upon the fourth proposition, therefore, I reserve my opinion until such time as its expression will have the force of law.
There being no question that the relator has a right to recover the amount due on its account, it follows that the writ should issue.