dissenting:
The questions • presented on these appeals are of more than ordinary importance to the people of this District. They affect the manner of administering justice, as it has heretofore been administered in civil cases, by justices of the peace. The questions are, 1st. What is the nature and extent of the civil jurisdiction of the several justices of the peace, under the Constitution and the acts of Congress made in pursuance thereof, as the Constitution and acts of Congress apply to the District of Columbia? 2d. Whether the act of Congress of March 1, 1823, Ch. 24 (3 Stat. 743), and the subsequent- re-enactment thereof, providing for trial by. *247jury before justices of the peace in civil cases, is constitutional and valid; and, if constitutional and valid, whether the jury so provided for is such a jury as is within the meaning and contemplation of the Seventh Amendment to the Constitution of the United States, or otherwise ? And, 3d. If the acts of Congress giving the right to trial by jury in actions brought before justices of the peace be valid, whether the right of appeal exists to the Supreme Court of the District from judgments rendered upon such trial, and if an appeal lies, to what extent are such judgments re-examinable in the appellate court ?
1. The Constitution of the United States, Art. 1, Sec. 8, among the delegated powers to Congress, declares Congress shall have power to constitute tribunals inferior to the Supreme Court ; and to exercise exclusive legislation in all cases whatsoever over the District of Columbia, as the seat of the Government of the United States. By l’epeated decisions of the Supreme Court of the United States, this latter power has been construed to be equally comprehensive in Congress as are the ordinary legislative powers exercised by the State legislatures, under State constitutions. There is, therefore, no question of the right of Congress to provide for the appointment of justices of the peace, and to prescribe and provide for the performance of their duties, though such officers are not mentioned or designated in the Constitution.
The office of justice of the peace had its origin in England by virtue of the Statute of 34 Ed. 3, as we now recognize it, though the duties pertaining to it have been variously modified and enlarged, both in this country and in England. A civil j urisdiction has been engrafted upon the office and. has been exercised from an early time in this country; and at the time, and long before, the separation of this District from the State of Maryland, civil jurisdiction for the recovery of small debts was exercised by justices of the peace in that State. And in the act of Congress of February 27, 1801, declaring the laws in force in the State of Maryland *248to be in force in this District, it was enacted that justices of the peace “shall have all the powers vested in, and perform all the duties required of justices of the peace, as individual magistrates, by the laws in force within this District.” This statutory provision is still in force in - this District, as will appear from the Revised Statutes of the United States relating to this District, Sec. 995; and their jurisdiction has been declared and extended by repeated subsequent acts of Congress.
A justice of the peace appointed for this District was recognized and defined by the Supreme Court as an officer of the Government of the United States. This was held in the case of Marbury v. Madison, 1 Cr. 137; and in the subsequent case of Wise v. Withers, 3 Cr. 331, where the question was whether a justice of the peace in this District was an officer, judicial or executive, of the Government of the United States, and thus entitled to exemption from military duty, Mr. Chief Justice Marshall, in delivering the opinion of the court, said: “If a justice of the peace is an officer of the Government of the United States, he must be either a judicial or an executive officer. In fact, his powers, as defined by law, seem partly judicial and partly executive. He is, then, within the letter of the exemption, and of course must be considered as comprehended within its proper construction, unless there be something in the act which requires a contrary interpretation.” The justice of the peace was held to be exempt from military duty.
It is very clear, however, that a justice of the peace in this District is not a judicial officer within the meaning or contemplation of the Constitution of the United States. He is not a judge of a tribunal inferior to the Supreme Court, within the meaning of the Constitution. He is not a judge in any-constitutional sense; his proceedings are not according to the course of the common law, and are not matters of record, according to the meaning given by the common law. His jurisdiction in civil matters is purely statutory, *249and of a summary character, intended to bring justice home, in matters of small amount, to every man’s door, and to dispense with delays and expensive process of the ordinary courts of record. This has been found necessary to meet the exigencies of society in nearly' all States and communities that have founded their juridical systems upon English models. In speaking of the inferior courts of England, Blackstone, in his Commentaries (Bk. 3, Ch. 4), says: “These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion.” In this country, instead of the court baron, the hundred courts, and the .county courts, as they formerly existed in England, and of which Blackstone speaks, a considerable portion of the jurisdiction that was exercised by those inferior courts has been very generally conferred upon justices of the peace, with the right of appeal to a superior court. In this District, justices of the peace have from the commencement been vested with jurisdiction to try cases and render judgments for any sums not to exceed certain amounts, and which amounts have, from time to time, been increased or extended from $20 to $300 as the limit; the Supreme Court of the District, until recently, having concurrent jurisdiction of all amounts exceeding $50, and at present, under the act of Congress of February 19, 1895, to extend the jurisdiction of justices of the peace, it has concurrent jurisdiction of all amounts exceeding $100. By the act of Congress just referred to of 1895, it is provided that justices of the peace in this District “ shall have jurisdiction to hear, try and determine all civil pleas and actions, including attachments and replevin, when the amount claimed to be due, or the value of the property sought to be recovered, shall not exceed $300, ex*250cept,” &c. And by the next section of the act it is declared “that such jurisdiction shall be exclusive original jurisdiction where the amount claimed to be due, or the value of the property sought to be recovered, shall not exceed one hundred dollars, and original and concurrent with the Supreme Court of the District of Columbia where the amount claimed to be due, or the’value of the property sought to be recovered, is more than one hundred dollars, but does not exceed three hundred dollars; and where the sum claimed exceeds twenty dollars either party shall be entitled to a trial by jury.”
The right of appeal is given to either party, in all cases, to the Supreme Court of the District, where the debt or claim exceeds $5. The Supreme Court of the District is required, in a summary way, on appeal taken, to hear the allegations and proofs of both parties, and detérmine upon the same according to law and the equity and right of the matter, at the same term, without continuance or delay, &c.; and either of the parties may demand a trial by jury, or leave the cause to be determined by the court, at their election. Rev. Stats. U. S., D. C., Secs. 774, 775, 776. The trial on appeal to the Supreme Court of the District is de.novo, and as if the case had been originally instituted in that court. This is manifest from the terms of the statute, directing the manner and course of investigation of the allegations and proofs on appeal. Either party is secured in his right to a jury trial on appeal, if he desires such mode of trial; and it has been held in many cases, as shown by Judge Cooley, “that it is competent to deny to parties the privilege of a trial by jury in a court of first instance, provided the right is allowed and secured on appeal. It is undoubtedly competent,” says the author, “to create new tribunals without common law powers, and to authorize them to proceed without a jury; but a change in the forms of action will, not authorize submitting common law rights to tribunals in which no jury is allowed.” Cooley, Const. Lim. (6th ed.) *251page 505; Emerick v. Harris, 1 Binn. 416; McDonald v. Schell, 6 S. & R. 240; Wilson v. Simonton, 1 Hawks, 482; Monford v. Barney, 8 Yerg. 444; Beers v. Beers, 4 Conn. 535; Reckner v. Warner, 22 Qhio St. 275; Jones v. Robbins, 8 Gray, 373; Flint River, &c., Co. v. Foster, 5 Ga. 104; Lincoln v. Smith, 27 Vt. 328, 360; Steuart v. Baltimore City, 7 Md. 500. This general principle has been modified as applied to criminal cases, upon the principle that the accused should not be first convicted by a court and then be subject to another trial to entitle him to an acquittal by a jury. It is, therefore, held that the prisoner has a right to jury trial from the first moment and in whatever court he is put on trial for the offence charged. Callan v. Wilson, 127 U. S. 540. It is manifest, however, that there is a marked distinction between the case of a criminal charge, involving the life or liberty of the party accused, and that of a civil proceeding for the recovery of small debts or demands as between party and party. The case of Callan v. Wilson was decided on the construction of the second section of the Third Article of the Constitution, which declares that “the trial of all crimes, except in cases of impeachment, shall be by jury;” and on the construction of the Sixth Amendment to the Constitution which declares that “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” But the right to trial by jury, secured by the Seventh Amendment to the Constitution, applies only to civil cases, in which legal rights are to be ascertained and determined, as distinguished from rights in criminal cases or equitable rights.
2. The next question is, whether the jury provided for by the act of Congress of March 1,1823, Ch. 24, and confirmed by subsequent acts of Congress, is a legal and valid jury for the trial of cases before justices of the peace, and if so, whether such jury is a common law jury, and such as is contemplated by the Seventh Amendment of the Constitution ?
*252In view of the exclusive legislative power of Congress over this District, it is difficult to conceive how a question can be seriously raised as to the want of power in Congress to provide for a jury as an aid to the exercise’of the jurisdiction conferred upon justices of the peace. But,whether such jury is a common law jury, and therefore within the meaning and contemplation of the Seventh Amendment to the Constitution, or a jury of purely a statutory creation in analogy to the common' law jury, is another and a different question. By the Seventh Amendment, See. 1, to the Constitution, it is provided that “ in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” This was simply preserving the common law right of trial by jury, and all the substantial incidents belonging thereto, without the power of Congress to violate or impair that right.
It has been held from an early day that.this provision of the Constitution contemplated only the trial by jury as known and defined by the common law, as distinguished from the juries that may be provided for to aid in the administration of other systems of law, such as the equity, admiralty, or the ordinary probate jurisdiction, or other special statutory juries. Parsons v. Bedford, 3 Pet. 433. The jury secured by the Constitution is for the trial of suits at common law, and their findings of fact cannot be reexamined, except according to the rules and courseof thecommon law. But the jury provided for by the act of Congress of 1823, Ch. 24, is not a common law jury, in anyproper sense of the term. It is indispensable to the exercise of the functions of a common law jury, that it should sit with a judge or court of record, and whose proceedings are according to the course of the common law. Such jury can only decide matters of fact, and that must be under the direction ■ and *253subject to the control of a judge of record. Without such judge or court a common law jury cannot perform its proper functions as such. And though a jury may be instituted as a substitute for the common law jury, with most of its incidents, it is not the same thing, and does not fulfill the common law definition. The respective functions of judge and jury are stated bjr Lord Coke in several places in his commentaries upon Littleton and which have been uniformly recognized as the true lines of distinction. At page 125, section 193, Lord Coke says, that “tryall is to finde out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given. And as the question between the parties is two fold,so is the triall thereof; for either it is questio juris, that shall be tried by the judges either upon demurrer, special verdict or exception. . . . or it is questio facti.” And at page 1556, Sec. 234, the learned author says, “ the most usual triall of matters of fact is by twelve men; for ad questionem, facti non respondent judices ; and matters in law the judges ought to decide and discuss; for ad questionem juris non repondent juratores. ”
But as we have seen, “ a justice of the peace, as an individual magistrate,” is not a judge within the meaning of the Constitution, and holds no court in the common law sense; and the jury provided for is clearly not a common law jury. The jurors required to be summoned and empaneled are simply aids or auxiliaries to the magistrate in the exercise of his jurisdiction; and, in analogy to the functions of the common law jury, are required to hear the evidence and render a verdict thereon. And while without a competent court there can be no jury in a common law sense of the term, yet there may be a jury authorized by statute to aid in the exercise of a special summary jurisdiction, such as that of a justice of the peace, without a court according to the common law definition.
Nor is there anything anomalous or novel in these defi*254nitions and distinctions; and certainly it was equally competent to Congress to provide for such jury as it would be to provide for a special jury to hear and determine issues out of a court of equity. Such jury would clearly not be a common law jury to hear and decide upon common rights, within the meaning of the Constitution. The chancellor would not be concluded by the verdict of the jury, but he could re-examine the facts embraced in the findings of the jury-
In the State of New York, the constitution of the State secured to the party proceeded against trial by jury; and in the case of People v. Fisher, 20 Barb. 652, the Supreme Court of that State said: “A common law jury trial can only be had in a court of common law jurisdiction, both as regards the character of the court and its mode of procedure. It is not true that simply making the jury to consist of twelve men constitutes a common law jury trial.” And, therefore, instead of twelve men, as provided by the act of 1823, Ch. 24, it was equally competent to Congress to have provided for any different number than twelve, either more or less, such jury not being a common law jury, but one constituted in analogy to the common law jury only. Work v. State, 2 Ohio St. 296.
In the work of Messrs. Thompson and Merriam on Juries, Sec. 10, the authors have collected the authorities upon this question, and stated the result of them as follows: “But whenever facts are to be found in any proceeding in which a jury was not required by the common law, a jury of any number may be authorized within the discretion of the legislature. Thus justices’ courts, not being courts of record, and not within the constitutional provision just mentioned, juries did not form a part of the machinery of such tribunals at common law, and so long as an appeal is provided for to the common law courts from their determinations, no constitutional objection can arise whether the *255facts are found by a justice or by the aid of a jury of any number of men.”
This is, doubtless, in strict accordance with long settled views and opinions, and established practice in all jurisdictions where the judicial functions of the justice of the peace are similar to those exercised by justices of the peace in this District.
3. But is is argued in these cases, and it was so held in the court below, that there is no appeal, and can be none, in any case arising before a justice of the peace where a jury has been or may be demanded, under the act of Congress of 1823, Ch. 24; that the jury provided for by that act is invested with exclusive power of deciding both the law and the facts of the case, wholly irrespective of the power of the justice of thé peace, and that there are no means provided for an appeal in any such case, and there can be no review of the findings of the jury. But clearly this construction is without valid foundation. It is true, if the jury provided for by the act of 1823 was a common law jury, it could not be required to decide matters of law, nor could its findings of fact.be made re-examinable in any other manner than according to the course of the common law. But not being a common law jury, the inhibition of the Constitution does not apply to its findings, and a reasonable construction of the statute does not require that such jury as that provided for should decide matters of law as well as of fact. The jurisdiction that is exercised is that delegated to the justices of the peace; the agency of the jury is only auxiliary to the exercise of that jurisdiction. The jury is sworn to decide according to the evidence, not the law, and to render a verdict thereon, not a judgment. The judgment is the effective result of the trial, and that is required to be rendered by the justice of the peace. He may not have power, by the terms of the statute, to set aside and vacate the verdict; but he is required to determine all questions relating to the *256qualifications of the jurors, and he must, from the necessity of the case, and upon plain principles of implication, have the right to swear the witnesses and determine what evidence shall be heard and considered by .the jury; and if no sufficient evidence be offered, it becomes his plain duty to direct a verdict accordingly. The jurors must, in analogy to the relation of the judge and jury at the common law, be subject to the direction of the justice in the course of the trial. Otherwise such trials would likely become farcical, and bring the administration of justice before justices of the peace into contempt. And such being the relation of justice and jury in the trial of causes, in any case where verdict and judgment have been entered, whether upon evidence, or for the want of evidence, and in cases where judgments have been entered without verdicts, the party supposing himself aggrieved thereby has the right of appeal therefrom to the Supreme Court of the District of Columbia. This right of appeal exists in all civil suits tried before justices of the peace, where the debt or demand is above $5; and it does not except the cases tried with the aid of a jury. All the legislation of Congress in regard to the eivil jurisdiction of justices of the peace must be construed in pari materia, and given such effect as will best accomplish the objects of the statutes. The appeal in all cases is taken from the judgment of the justice, whether rendered upon his own inquiry or upon the verdict of a jury, and never from the verdict itself. Upon the appeal coming into the Supreme Court of the District, that tribunal is required to hear the case on the allegations and proofs de novo, as if the case had originated in that court; and either party may demand a jury trial. The fact that the case was tried before the justice with the aid'of a jury, and that his judgment was rendered upon a verdict, in no manner affects the right and duty of the Supreme Court to hear the case on the allegations and proofs de novo, and deter*257mine upon the same according to lato and the equity and right of the matter.
To hold, according to some of the arguments made at bar, either that the act of Congress of 1823, Ch. 24, is unconstitutional and void, or that there could be no civil jurisdiction conferred upon justices of the peace for amounts to exceed $20, because of the right of parties to demand the trial by common law jury of all amounts exceeding that sum (which jury the act of 1823 does not supply), would be to declare, as the matter of jurisdiction is now limited in this District by the act of Congress of February 19, 1895, that there is no available remedy for parties where the amount claimed to be» due, or the value of the property desired to be recovered exceeds $20 and is not more than $100 — there being no original jurisdiction in the Supreme Court for amounts under $100. Such state of law, if it really existed, would be very deplorable; but there is in reality, according to my opinion, no such defective jurisdiction existing in this District.
The act of Congress of 1823, Ch. 24, has been the subject of a variety of views and interpretations, as to its effect and proper construction, as will appear from the cases of Sherburne v. Semmes, 2 Cr. C. C. 446; Davidson v. Burr, 2 Cr. C. C. 515; Denny v. Queen, 3 Cr. C. C. 217; Smith v. Chase, 3 Cr. C. C. 348, and Fitzgerald v. Leisman, 3 MacA. 6. It was held in those cases, so far as they show any definite ruling, that where a case had been tried by a jury under the act, there could be no re-examination of their findings; that they passed upon the whole case to the exclusion of all participation of the justice, and that an appeal did not subject their findings to re-examination by the appellate court. The right of appeal, however, was all the time in force, and the case on appeal was required to be heard on the respective allegations and proof of the parties de novo, as at present: and it is difficult to conceive of any reason why an appeal was not available, except upon some theory, not clearly *258defined, that the jury provided for by the act of 1823, was a common law jury, within the meaning of the Constitution. This, as I have attempted to show, was not the character of the jury provided for by the act of 1823.
With all the perplexity, and apparent doubt and difficulty in the construction of the act of 1823, and of its application in practice,its constitutionality has never been seriously challenged, until very recently; but by a decision of the court below, recently made, the act has been declared unconstitutional and void. This construction carries with it many serious consequences that should be avoided if possible. The act has been in force for near about three-quarters of a century; and during that time, as we fiiay well suppose, a great many valuable rights have arisen and are dependent upon the validity of proceedings had under that apt. To declare the act to have been unconstitutional and void from the commencement, with the consequent invalidity of all proceedings thereunder, would likely produce great trouble and confusion. With all due respect to the opinions of others, however, I am of opinion that the act is not unconstitutional; and that the right to trial by jury, as contemplated by the Constitution, and according to the principles of the common law, is amply secured to either party by the right of appeal to the Supreme Court of the District; and such right of appeal and right to trial by jury on appeal, are necessary conditions to the lawful exercise of the civil jurisdiction of justices of the peace, “where the value in controversy exceeds twenty dollars.” Indeed, the right of appeal and a trial de novo, both as to law and fact, are essential rights to both plaintiff and defendant in these magistrate’s cases, and I cannot concur in any construction by which one party by his mere election of the mode of trial before the justice may cut off the right of appeal to the other. The statute in giving the right of appeal and requiring the case to be tried de novo by the appellate court makes no such distinction or discrimination. The right of appeal and a trial before a jury under the direction of a *259court of common law jurisdiction, are the rights to be preserved and protected; and the trial by jury thus secured to both parties fully gratifies the constitutional requirements.
These are my views in respect to the exercise of the jurisdiction conferred upon justices of the peace in this District; and it follows from them that, in my opinion, the order of the court below passed in the case of The United States on the relation of the Brightwood Railway Company v. Lewis I. O'Neal, discharging rule to show cause why a mandamus should not issue, and dismissing petition and refusing the mandamus, ought to be reversed, and the cause be remanded to the court below that the writ of mandamus might issue as prayed. But with respect to the order of the court below, passed in the case of Charles Hof v. The Capital Traction Company, overruling motion to quash writ of certiorari, and quashing part of proceedings before the justice of the peace, such order should be reversed, and the petition for the writ of certiorari be dismissed, for the reason that an appeal from the judgment of the justice of the peace would furnish to the defendant the appropriate remedy for any grievance it might have by the judgment of the justice.
On March 3, 1897, an application was made on behalf of the appellant, the Brightwood Railway Co., for a writ of error to the Supreme Court of the United States.
On March 6, 1897, the application was denied, Mr. Chief Justice Alvey delivering the opinion of the Court:
The principle involved in this case is one of more than ordinary importance, and it is therefore desirable that it should be finally settled by the Supreme Court of the United States, if there be any way by which it can be taken to that tribunal of last resort. But we are not able to perceive any ground upon which a writ of error can be allowed, under the decisions of the Supreme Court. It is true, it is not for this court to decide the question of jurisdiction of *260the Supreme Court, or in what, case a writ of error will lie; but it should at least appear that the case is reasonably within some principle upon which the writ of error can be allowed, to justify this court in allowing the writ and sending the case to the Supreme Court. But while we feel constrained to refuse the allowance of the writ, the party making the application for it can apply-to one of the justices of the Supreme Court for the writ, and the order that we now make will in no manner prejudice the right. The writ of error is refused.