concurring specially.
Because of the error of the district court in directing a verdict for the defendant, I join with my brethren in voting for a reversal of the judgment. As at present advised, I am unable to agree with them in holding the verdict of the coroner’s jury inadmissible in evidence for any purpose. The better doctrine, in my opinion, and the one sustained by the weight of authority in England and in this country, as announced by the supreme court of Illinois in the cases cited in the foregoing opinion, is that such a verdict, being a judicial determination of a fact of public interest and importance, required by the statute thus to be ascertained, is competent and admissible in a case like the one at bar, as prima facie evidence of the cause of death, as therein found. To the same effect are: 2 Phillips’s Evidence, *262-268; 1 GfreenT leaf’s Evidence, sec. 556; 1 Starkie’s Evidence, *307-309; Walthers v. M. L. I. Co., 65 Cal. 417; County of Lancaster v. Mishler, 100 Pa. St. 624. In Louisiana it seems to be admissible even in a criminal case. State v. Parker, 7 La. Ann. 88; State v. Puffy, 39 La. Ann. 419. The New York case I do not think militates against this doctrine, while the case from Maryland is clearly dictum, for the question as to the *55effect of the admissibility of the verdict of the coroner’s jury was not present in the case.
I do not give to section 1 of article 6 of our constitution (as originally adopted) the same effect that my brethren do. It reads as follows:
“ The judicial power of the state, as to matters of law and equity, except as in this constitution otherwise provided, shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts as may be*.created by law for cities and incorporated towns.”
The exception therein embodied indicates that elsewhere in the constitution judicial power may have been “ otherwise provided.” Turning to section 8 of article 14, there is found a mandate that there shall be elected in every county, every two years, one coroner. His duties are not therein defined, but the coroner was a well known officer at the common law, and unquestionably exercised judicial power in holding inquests. Without any further specification in the constitution, unless the statute imposed limitations, the office would therefore exist with all common law incidents. 4 Am. & Eng. Ency. of Law, 173, and cases cited.
That the general assembly so interpreted said section 8 as authorizing the creation of a coroner’s court and the vesting of judicial power therein, is shown in that, at its first session in 1877, it passed an act, largely declaratory of the common law, whereby it clothed the coroner with certain powers, some of which are only ministerial, but others as clearly judicial in their nature as those vested by section 1 of article 6 in the supreme or district courts. Nor do I conceive the sole object of an inquisition by a coroner to be to lay a foundation for a criminal prosecution, in case the finding is that the death was felonious. That, it is true, is one object, but by.section 870 Mill’s Ann. Stats.: “Where he has notice of the dead body of any person supposed to have died by unlawful means, or the cause of whose death is unknown, found or being in the county, it shall be his duty to summon forthwith, six citizens of the county to appear at a time and place *56named.” He thereupon holds an inquest to ascertain the cause of death.
In the majority opinion the interpretation of the statute is as if the words above italicized were omitted, and the effect of such decision is to divest the coroner of power to hold an inquest to ascertain the cause of death when, as he supposes, it was not unlawful, but only unknown. I know of no rule that justifies such construction. As I interpret this statute, it is^made the duty of the coroner, when he receives notice of a dead body, where the cause of death is unknown, forthwith to summon a jury, subpoena witnesses, and cause a judicial investigation to be made to ascertain that cause. If found to be unknown, the verdict so embodying it, which must be filed in the district court of the proper county, is a judicial determination of a fact required to be determined by the statute; and as such, should be considered as prima faeie evidence of that fact, at least in all civil cases wherein it becomes material. Moreover, that the powers conferred upon the coroner by this act are judicial, and his tribunal a court, though of inferior jurisdiction in some of the states in this country, seems scarcely debatable. See authorities already cited; also 4 Am. & Eng. Ency. of Law, 174 et seq. and cases cited; Black’s Law Dict. 274, 278; Anderson’s Law Dict. 260; Vickers on Coroners; 5 Enc. Pl. & Pr. 88 et seq.; Boisliniere v. Co. Comm., 32 Mo. 375. He is authorized to impanel a jury, to supervise and control the inquest, to subpoena witnesses and enforce their attendance, to punish them and jurors for contempt in disobeying his process, the same as can a justice of the peace when his process runs in behalf of the state. He may also issue a warrant, running in the name of the people of the state, for the apprehension of a person suspected, in case the death is found to be felonious. So that this verdict, being at common law admissible as aforesaid, and that system of law being in force here so far as applicable and of a general nature, and unless modified by statute, I think the same rule is in force in this state.
I am not unaware of the claim made as to the origin of the *57rule in England, and of the deduction therefrom, that the reason of the rule ceasing, the rule itself should fail. But the common law, as we have adopted it, placed no such limitation upon the rule as is applied by the majority. Neither do I fail to perceive the force of the argument of the learned Chief Justice, wherein, if the rule contended for by me is enforced, he anticipates an unseemly scramble of interested persons to influence the coroner’s verdict. But these and similar arguments are more properly addressed to the legislative department, as reasons for changing a long recognized common law rule, and should not be potential with courts as a reason why they should encroach upon legislative functions;