Baldwin, J. and Cope, J. concurring.
The plaintiff in error bases his objections to the action of the District Judge upon the alleged unconstitutionality of the Act of March 29 th, 1860, providing for the construction of the State Capitol in the city of Sacramento, and the alleged error of the Judge, in his refusal to set aside the award of the Commissioners, fixing the compensation to be made to the plaintiff, as owner of a parcel of the land intended for the site of the capítol.
*2531. The unconstitutionality of the act is asserted on two grounds: first, that it creates an indebtedness or liability on the part of the State exceeding the limit of $300,000, prescribed by the eighth article of the Constitution ; and, second, that it provides that the compensation to the owners of the property taken shall be ascertained by three Commissioners, and thus deprives the owners of the right to a trial by jury.
The act provides, that the entire cost of the capital shall not exceed $500,000, and it is hence inferred, that the Commissioners are authorized to contract for a building requiring an expenditure of that amount; but the inference is not warranted. The Legislature undoubtedly intended by the provision to indicate the amount within which the work is to be constructed, and to furnish, in some respect, a guide to the Commissioners in the adoption of a plan for the building; but the provision does not authorize any contract, by which a debt or liability to that amount against the State can be created. The Commissioners are only authorized to contract to the extent of $100,000; though a plan be adopted by them which may require, in its execution, the half million designated. For the liabilities which may be thus incurred, the act makes provision; it appropriates, for that purpose, the requisite sum, thus anticipating their existence, and discharging them as they arise. (See State v. McCauley and Tevis, 15 Cal. 429.) Before any greater liabilities can be created, further legislation must be had.
It will be thus seen that there is no analogy between this case and the case of Nougues v. Douglass et al., (7 Cal. 65) cited by the plaintiff in error. The Act of 1856, considered in the latter case, authorized a contract for the construction of a capital for a sum not exceeding $300,000, and provided that the payments should be made in bonds of the State, redeemable in thirty years; and at the time of its passage, the State was indebted to the amount limited by the Constitution without a vote of the people.
The objection to the constitutionality of the act on the second ground —that it authorizes the compensation to the owners for the land taken to be ascertained by Commissioners, and not a jury—is untenable. The provision of the Constitution, that “ the right of trial by jury shall be secured to all, and remain inviolate forever,” applies only to civil and criminal cases in which an issue of fact is joined. The language was used with reference to the right as it exists at common law. It is true, that the civil law was in force in this State at the time of the adoption of the Constitution, but its framers were, with few exceptions, *254from States where the common law prevails, and where the language used has a well-defined meaning. The people who, by their votes, adopted the Constitution, at least a vast majority of them, were also from countries where the common law is in force, and they looked upon the right secured as the right there known and there held inviolate. It is in this common law sense that the language has always been regarded by the Courts of this State. It is a right “ secured to all,” and “ inviolate forever,” in cases in which it is exercised in the administration of justice according to the course of the common law, as that law is understood in the several States of the Union. It is a right, therefore, which can only be claimed in actions at law, or criminal actions, where an issue of fact is made by the pleadings. It cannot be claimed in equity cases, unless such issue be specially framed for a jury under the direction of the Court. It cannot be asserted upon an issue at law, for that is a matter purely for the Court. The fact, therefore, that property and rights of property may be involved in the disposition of a particular case or proceeding, does not determine the right to a trial by jury. There must be an action at law, as contradistinguished from a suit in equity, and from a special proceeding, or a criminal action, and an issue of fact joined therein upon the pleadings, before a jury trial can be claimed as a constitutional right. The proceeding to ascertain the value of plaintiff’s property, and the compensation to be made to him when taken, is not an action at law: it is an inquisition on the part of the State for the ascertainment of a particular fact, as preliminary to future proceedings, and it is only requisite that it be conducted in some equitable and fair mode, to be provided by law, either with or without the intervention of a jury, opportunity being allowed to the owners or parties interested in the property to present evidence respecting its value, and to be heard thereon. The Constitution of New York, of 1821, provides that, “the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate foreverand in Livingston v. The Mayor of New York, (7 Wend. 85) objection was taken to the mode adopted for ascertaining the compensation to be paid to the owners of land in the opening of streets in the city of New York. It was insisted, as in the present case, that the estimate should have been made by a jury, and not by Commissioners appointed for that pm-pose; but the Court said: “ The provision of the Constitution relative to the trial by jury, relates to the trial of issues of fact, in civil and criminal proceedings in Courts of justice, and has no relation to cases of this *255kind. Although damages have frequently been ascertained by the oaths of twelve freeholders, both before and since the adoption of the Constitution, yet these were not jury trials within the spirit or meaning of that provision.” (See also, to the same effect, Beekman v. The Saratoga and Schenectady Railroad Co., 3 Paige, 75; Railroad Company v. Davis, 2 Dev. & Batt. 465; Willyard v. Hamilton, 7 Ham. Ohio, 453, et seq.)
2. The application to the District Judge to set aside the award of the Commissioners, and for a new trial, was properly denied. The act provides that, if the proceedings of the Commissioners are regular, and “ appear to have been done in good faith,” the Judge “ shall, by order, confirm their finding and conclusion; otherwise, he shall make such order as may be just and proper, in reference to a retrial of the same, or any part of said proceedings.” It is not pretended that the proceedings of the Commissioners were irregular, but it is charged that they were not “ done in good faith.” It appears from the affidavit read upon the application, that there was conflicting testimony as to the value of the property claimed by the plaintiff in error, and that the estimate placed by the Commissioners exceeded that given by some of the witnesses. The imputation upon the good faith of the Commissioners appears to rest upon two grounds: first, that they did not award as the value of the premises what the plaintiff alleges was them cost; and, second, that they did not give greater credence to the testimony produced on behalf of the plaintiff, than to the testimony offered on the part of the State. It requires no argument to answer positions of this character. They fall with their statement.
The award of the Commissioners, and the action of the District Judge thereon, must be affirmed, and it is so ordered.