The opinion of the Court was delivered by
Black, J.This is a case under the peculiar road law of Erie county. The plaintiffs demanded compensation for land taken to make a road, and to that end they commenced a proceeding against the road commissioners before a justice, whose duty it became to call a jury of 'six persons to try the cause. The commissioners claimed the right to challenge or set aside four of the jurors peremptorily, and without assigning any cause whatever. The justice permitted this to be done; and not this only., but he allowed the commissioners of the township to name the persons who should be substituted in the place of those who were so stricken off.
It is contrary to every principle of right and justice that, in a civil proceeding, the power should be given to one party and withheld from the other, of naming the jury to try the cause. No such rule has ever been established in any country since the trial by jury was first instituted. A person accused of certain high criminal offences may challenge a limited number, while the prosecuting officer has no such privilege; but even the tenderness of law for life and liberty has not yet induced any legislation to permit a party so situated to name the persons who shall fill the place of the jurors challenged. It is doubtful if such a statute as this was construed to be, by the justice and the court below, would not be unconstitutional and void. No man’s property can be taken for public use without paying, or providing for the payment of *136adequate compensation. And who will say that a compensation is provided for by a law which compels the owner to take whatever may be awarded by a jury of his adversaries’ choosing ?
It is argued that the road commissioners are not in any proper sense parties to this proceeding. Then there are no parties, for there are no other names on-the record, and nobody else was summoned. It is true that the damages recovered by the complainant will not have to be paid out of their private pockets. Neither does an administrator pay the debt of his decedent,'nor is a bank officer personally responsible for a wrong committed by his corporation. Yet if they were permitted to choose juries in their own cases, no one would suspect them of exercising the privilege with very much impartiality. The road commissioners are- chosen by the townships, represent the people of the township, and are charged with the duty of managing the financial affairs of the township. Their relation with the township, to say nothing of their personal interest as tax-payers, is as close as that of attorney and client, and very much of the same nature. Our knowledge of mankind will not permit us to believe that these officers could be engaged in a controversy like this, against a claim which they have decided to be wrong, without having some feeling. Most men would have a great deal. Naturally, and almost necessarily, they would exercise the power claimed for the purpose of rejecting impartial jurors, and substituting in their places others whom’they believed to be favourable to themselves. Some proof of this is furnished by the record before us, which shows that though the jurors originally summoned were from other parts of the county, and had at least no interest in the cause, every substituted juror was an inhabitant and tax-payer of Mill Creek township.
These are reasons a priori which would make us hesitate about* yielding such a power to the defendants, even if the letter of the statute should seem at first view to warrant it. But this Act requires no straining to make it accord with the principles of natural justice. The commissioners are authorized to reject (a word which we understand as synonymous with challenge) four jurors or any less number; but not peremptorily. The Act expressly says that it can be done only “for interest or other cause.” The right to reject depends on the existence of interest or other cause, and therefore the latter must be proved before the former can be exercised. The words “ other cause,” mean such good ground of challenge as will be sufficient to disqualify the juror. The commissioners may be said to “substitute others” in place of those rejected, when they cause new jurors to be summoned by the magistrate. The Act does not say that the substitutes shall be selected and named by the commissioners.
We are of opinion .that the Act of 1810, which makes the decision of the Common Pleas final in a certiorari, does not apply to *137a ease like this, which arises under a special statute giving to justices an extraordinary jurisdiction.
The motion to quash the writ is overruled, and the proceedings before the justice are reversed and set aside, with directions that the justice call the parties before him, and proceed de novo according to law.