dissenting:
The majority holds that the plain meaning of the Montana Constitution controls and that the legislative enactment of Section 3-15-203, MCA, (which provides for justice court jury fees) restricts the inviolate right to jury trials in justice court. The majority then concludes that the provisions of that code section together with Rule 14.F, M.J.R.Civ.P., are unconstitutional. I disagree with the holding and conclusion.
The majority refers to North Central Services, Inc. v. Hafdahl (Mont. 1981), 625 P.2d 57, 38 St.Rep. 372, and concludes that the case is not directly in point. In contrast, I believe North Central Services is directly in point and mandates a conclusion contrary to the majority opinion.
*40As above pointed out, the majority opinion concludes that the code section on jury fees in justice court “restricts the inviolate right to jury trials in justice court.” That directly contradicts the position taken in North Central Services. In that case we stated the question as whether or not a jury trial is required in small claims court. The majority in that opinion concluded:
“We hold that the constitutional right to trial by jury is satisfied if it is granted at the District Court level, though denied at the small claims level.”
North Central Services, 625 P.2d at 58. While it is true that in North Central Services we held that a code section was unconstitutional, we did so on the basis that it effectively denied the right to trial by jury at both the small claims court and district court level, and concluded that was unconstitutional. The circumstances are different with regard to justice courts.
Section 3-5-303, MCA, provides that the district court has appellate jurisdiction in cases arising in justice courts. Section 25-33-301, MCA, provides that all appeals from justice courts must be tried anew in the district court. That section further provides that when the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. Applying the rationale of North Central Services, because the statutes clearly grant a right of trial by jury in the trial anew at the district court level, we must conclude that the constitutional right to a trial by jury has been satisfied with regard to claims made in justice court.
In accord with North Central Services, I would therefore hold in the present case that the constitutional right to trial by jury at the justice level is satisfied because it is granted at the district court level. There has been no denial of a constitutional right to trial by jury.
The majority opinion emphasizes that the right to trial by jury is one of our vital barriers to governmental arbitrariness which are embedded in our Constitution. I agree with that theory as a general principle. However, I question that it applies to the present facts.
I believe it important to consider another provision of our Montana Constitution, Art VII, Section 4(2). That section states in part as follows with regard to the jurisdiction of district courts:
“(2) The district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law . . .” If the right to a factual determination by a jury were constitutionally necessary at the justice court level, as suggested by the majority, *41then that factual determination by a jury should be binding in subsequent determinations. However, in our Constitution, the people of Montana have chosen to allow a trial anew at the district court level, thereby eliminating the significance of a jury determination at the justice court level. If the jury determination were fundamentally important as suggested in the majority opinion, those findings of fact would not be disturbed. Contrast these provisions to the treatment of jury fact determinations by the district court, which must be accepted by appellate courts. Appellate courts are not allowed to make independent factual determinations.
We are required to balance constitutional provisions. Because a right of trial anew is granted after an appeal of a justice court judgment, we may properly conclude that North Central Services was correct when it held that the constitutional right to trial by jury is satisfied where it is granted at the district court level.
MR. JUSTICE GULBRANDSON joins in the foregoing dissent of MR. JUSTICE WEBER.