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the jury to avail itself of that which the law governing the case, before it, is and it is the right of the jury, after hearing all that may be properly said on the subject, to determine what the law, in that respect, should be held to be and to decide accordingly. This does not, however, place the jury above the law, or confer on its members, the lawful right to decide simply as they see fit, regardless of all law, as it has been recognized, or established, by the proper tribunals; Anderson v. State, 104-477; disi'g Hudelson v. State, 94-426.
65. Trial by jury inviolate in civil cases. Where a party is entitled to a trial by jury he can not be deprived of it, against his expressed wish, on the ground that the court fairly tried and correctly determined the case; Shaw v. Kent, 11-80.
2. Denial of trial by jury, over the objection and exception of a party, is not a technical error, that may be disregarded on appeal; Redinbo v. Fretz, 99-463, citing Shaw v. Kent, 11-80; Reynolds v. State, 61-392.
3. The legislature can not abridge the right of trial by jury, as guaranteed by this proviso. It may, however, enlarge the right; Hopkins v. Greensb. etc. Co., 46–187; Anderson v. Caldwell, 91-451; Pence v. Garrison, 93-345; Redinbo v. Fretz, 99-458; Powell v. Powell, 104-21.
4. This section secures a trial by jury in all cases that were regarded as civil cases at the time the constitution was adopted. It does not cover cases, in equity, that were not, formerly, triable by jury. The legislature can not curtail the right guaranteed, by the constitution, but, it may extend the right, of trial by jury, to cases not included in the constitutional guaranty; Redinbo v. Fretz, 99-459; dist'g Allen v. Anderson, 57–388, which followed Dillman v. Cox, 23-440 and did not involve an issue of fact.
5. This section applies, only, to actions that were triable by jury before the adoption of the constitution. It has no reference to cases falling within the chancery jurisdiction of courts; Helm v. Nat. B’k, 91-48; Anderson v. Caldwell, 91-452; Allen v. Anderson, 57-388; Evansv. etc. Ry. Co. v. Miller, 30-209; Hymes v. Aydelotte, 26– 431; Norrist. etc. T. Co. v. Burket, 26–53; Baker v. Gordon, 23–204; Dronberger v. Reid, 11-420; L. E. etc. Co. v. Heath, 9-558.
6. This section covers, only, such cases as were known as civil cases, before and at the time the constitution was adopted. Civil cases, as the words are used in the constitution, do not include cases in equity or special statutory proceedings. Therefore, in such cases, the legislature may provide for their trial, by courts, without jury; Powell v. Powell, 104-21; Lake v. Lake, 99-339; Miller v. Evansv. N. B’k, 99-272; Redinbo v. Fretz, 99-458; Israel v. Jackson, 93-543; Pence v. Garrison, 93-345; Lake E. etc. Co. v. Griffin, 92-487; Carmichael v. Adams, 91-526; Helm v. Nat. B’k, 9144; Anderson v. Caldwell, 91-451; Evans v. Nealis, 87-262; Hendricks v. Frank, 86278.
7. The common law manner of proceeding, in a suit, whether before or after trial, may be changed, by statute, so that the right of trial by jury be not infringed — as by authorizing actions inst sheriffs and sureries by notice and motion; Dawson v. Shaver, 1 B., 204.
8. To remain inviolate means that the right, of trial by jury, shall remain as it was. In chancery cases jury trial did not and does not exist; Allen v. Anderson, 57–388.
9. The section embraces, only, such cases as were treated as civil cases when the constitution was adopted; M'Mahan v. Works, 72–19.
10. The legislature has power to provide that in special proceedings the trial shall be by the court, and, not by jury; Lipes v. Hand, 104-505; Ross v. Davis, 97-79; Ind'polis etc. Co. v. Christian, 93-360; Anderson v. Caldwell, 91-451. It is beyond doubt that the power existed so to provide as to the trial of drainage cases; Lipes v. Hand, 104-505.
11. Any issue of fact concerning the settlement of the estate of a decedent was, prior to September 19, 1881, triable by jury, at the request of either party; ex. gr., a question of fraud; Clouser v. Ruckman, 89-66.
12. Habeas corpus is not a civil action, within the meaning of this section. It is to be tried by the court, and, not by jury; Baker v. Gordon, 23–204; Garner v. Gordon, 41-92; Orr v. Miller, 98-439.
13. A proceeding arising on exceptions to reports of an executor or administrator is not a civil case, within this section; Taylor v. Wright, 93-124; Anderson v. Cald. well, 91-451.
14. In suit on note and mortgage, praying for foreclosure, there is no constitutional right to trial by jury; Carmichael V. Adams, 91-526.
15. Divorce cases have been of equitable cognizance before the adoption of the constitution. They are not included in the term
as used in the bill of rights; Powell z. Powell, 104-20.
66. Compensation for services. This section prohibits the taking of private property, for public use, by a private corporation, without first assessing and tendering just compensation; Sidener v. N. H. etc. T. Co., 23-623; but see Rubottom u. M'Clure, 4 B., 505; Hankins v. Lawrence, 8 B., 266; M'Cormick v. Pres'ı etc., Lafayeite, 1-48. 2. The prohibition extends, only, to the taking of specific pieces of property.
Property may be taken, by taxation, without compensation; City Aurora v. West, 9-74; Logansport v. Seybold, 59-225.
3. The provision, of the old constitution, art. 1, sect. 7, that no man's property shall be taken for public use without consent etc. would not prohibit a judgment of seizure of corporate franchises, for violation of charter; State B'k v. State, i B., 267.
4. Officers entitled to fees and salaries take their offices cum onere. Their services are official, and, are not particular, within the meaning of this section; Turpen v. Board etc., 7-172.
5. Services of officers, entitled to statutory fees, are not “particular services ", wiihin this section; Falkenburg v. Jones, 5-296; wherefore, it is not unconstitutional to require such officers to perform services for which they are not, specifically, paid.
They must be considered to be compensated by fees allowed for other services; Board etc. v. Blake, 21-32.
6. The services of witnesses entitled to fees, fixed by law, are not particular services, within the meaning of this section; Israel v. State, 8-467.
7. A statute authorizing the location of private roads is unconstitutional, if it undertakes the exercise of the right of eminent domain, to that end; Wild v. Deig, 43-455; Stewart v. Hartman, 40-331.
8. A statute authorizing one to open a way over land of another, without his consent, at the expense of the former, it not being shown that public utility requires it, is unconstitutional; Blackman v. Halves, 72-515.
9. A legislative intent to subject lands devoted to a public use, already in exercise, to a use that may arise in the future will not be implied from a grant of power, made in general terms; ex. gr., in the drainage laws of the state; without special reference to an existing necessity for the subsequent use, where it appears that both uses can not stand together and the latter, if exercised, will greatly endanger the exercise of the former; Balt. etc. Co. 1'. North, 103-491.
10. The courts may prevent the taking of private property, under a statute, not for public use. The power can, only, be exercised when public exigency demands; Water W. Co. v. Burkhart, 41-364.
II. A statute purporting to abolish existing tenancies by courtesy and in dower, already in enjoyment, must be held, only, to take away inchoate rights; Strong v. Clem, 12-37.
12. State regulation of property, devoted to public use, is not the taking of property for a public purpose, within the meaning of the section; nor is it an interference with the guaranteed rights of the citizen in private property; Hockeit v. State, 105258.
13. The statute of May 31, 1952, as to the discretion to allow animals to run at large and pasture on public common and uninclosed lands, is not in violation of this section; Welch v. Bowen, 103–255.
14. In the assessment of damages, on the appropriation of property, for internal improvements, it is not unconstitutional to take benefits into consideration; M'Intire v. State, 5 B., 384.
15. If in estimating the damages, for the taking of land for a highway, the benefits, really and substantially resulting to the owner, equal, in pecuniary value, the value of that of which the public deprives him that is, within the constitution, a just compensation for the deprivation; Hagaman v. Moore, 84-199.
16. The right to seize private property, by virtue of the eminent domain, must be conferred on municipal corporations by statute. The right to acquire property, for corporate purposes, by contract, need not be conferred by statute. The delegation of the right of expropriation, under the eminent domain, does not - ex necessitate exclude the right to acquire property by contract; Leeds v. City, Richmond, 102–377.
67. Exemption. No imprisonment for debt. Statutes of exemption, under this section, are to be liberally construed; Butner v. Bowser, 104-259; Barkley v. Mahon,
95-101; State etc. v. Read, 94-103; Puett v. Beard, 86-172; Kelley v. M'Fadden, 80536; Gregory v. Latchem, 53-449.
2. This section authorizes imprisonment for fraud practised in avoiding the payment of judgment debts; Baker v. State etc., 109–48.
3. A constitutional provision abolishing imprisonment for debt does not inhibit imprisonment for torts; Turner v. Wilson, 49-531.
4. Fines aod costs, in a criminal proceeding, are within the meaning of the section; M'Cool v. State, 23-127; overrig Thompson v. State, 16-516, as to costs.
5. The penalty accruing from a breach of an ordinance, of a municipal corporation, is not a debt, within the meaning of the constitution; Hardebrook v. Town Ligonier, 95-73; M'Cool v. State, 23-127; Lower v. Wallick, 25-68; Turner v. Wilson, 49-581; M'Ilwain v. State etc., 87-602; Flora v. Sachs, 64-155.
68. Privileges equal. The exceptions in section 193, exempting certain property from taxation, do not contravene the provisions of this section; City Ind'polis v. Sturdevant, 24-391.
2. It is not unconstitutional for the legislature, in providing for two distinct courts and two distinct proceedings, provided in two statutes, to prescribe conflicting regulations for their conduct; as by statutes of April 8 and 21, 1881, in relation to drainage, the first denying a right of trial by jury and the latter conferring that right; Lipes v. Hand, 104-5!o.
3. A city ordinance requiring a hawker or peddler, who is a non resident of the city and who proposes to sell wares or merchandise, which are not grown or manufactured in the county, in which such city is situated, to procure a license and pay a fee therefor, before he may, lawfully, follow his calling in such city, discriminates against the citizens and products of other communities and is unconstitutional and void. On the other hand, where, by the terms of the ordinance, the privilege is equally open to all, upon the same terms and the license fees imposed are the same, regardless of the state or district, wherein the goods are manufactured or produced, such ordinance is a legitimate exercise of power ; Graffty 7, City Rushville, 102-511.
"An act providing for a board of metropolitan police and fire department in all the cities of this state of twenty-nine thousand or more inhabitants etc. (S., 1889, P: 222; post, chap. 21, art. 2), “classifies the citizens of Indianapolis and Evansville as to eligibility for commissioners of the metropolitan board: (1) Those who have resided in those cities for five years, and (2) those who have not. Those of the first class are eligible to be elected commissioners, and those who belong to the second class are ineligible" etc. In so far as such act provides that the members of the boards thereby created shall be elected from opposite political parties, and shall bave resided in the cities affected for five years preceding their election, and that the members of the police and fire forces to be organized by them shall be chosen equally from the two leading parties in such cities, it is violation of this constitutional section, which prohibits the legislature from granting to any citizen or class of citizens special privileges or immunities; Evansville v. State, 118-435 ; State v. Denny, 118–478.
As a general rule neither the state nor a municipal government can create a monopoly: Cit. Gas etc. Co.v. Elwood, 114-332. Nevertheless, it is noi to be understood that, under this rule, all monopolies are unlawful - there are many exceptions to the rule. The rule applies only to such things as, are of common right, and is never to be applied to such things as are, in their nature, a monopoly, as a patent right, a copy right, a ferry way, a railway on a street too narrow for its occupation by competing lines etc.; Indianapolis etc. Co. v. Cit. S. RR. Co., 127-388.
69. No ex post facto law. The prohibition, of this section, intends -- as to ex post facto laws- that the legislature shall not pass any law, after a fact has been done, by any 'citizen, which shall relate to that fact, so as to punish that which was innocent when done, or add to the punishment of that which was then criminal; or, increase the malignity of a crime ; or, retrench rules of evidence, so as to make conviction of crime more easy.; Strong v. State, 1 B., 193.
2. The crime of perjury was committed, during a period of time when the penalty was whipping. Before trial had, the penalty became changed, to confinement in the penitentiary, not exceeding seven years. Accused was tried, convicted and sentenced under the later statute ; which statute, thus changing the penalty, was held not to be ex post facto, within the meaning of the statute ; Strong v. State, 1 B., 193.
3. It is not ex post facto o require an attorney at law to take oath that he has not, within a time limited, and will not, in the future, be concerned in a duel; Blake's Ca., 1 B., 483.
4. Statutes which merely affece modes of procedure in prosecutions, for crime, may be made to operate retrospectively ; Robinson 7. State, 84-454.
5. There are no vested rights in the law, generally; nor in legal remedies. It is competent for the legislature to make changes, in these, so long as they do not affect the obligation of contracts; Edwards v. Johnson, 105-596.
6. There are, generally, no vested rights in statutes, nor in legal remedies. Changes, therein, do not fall within the constitutional prohibition, unless they be of such character as to, materially, affect the obligation of contracts. In like manner, statutes which, merely, afford means for a more efficient enforcement of a contract do not impair its obligation. Such statutes are valid ; Bryson v. M'Creary,
7. So far as concerns the remedy, the legislature may validate, but, it may not invalidate, the obligation of a contract; State v. Bennett, 24-393.
8. It is competent to change legal remedies; but, under guise of legislating upon a remedy, the legislature may not, in effect, impair the obligation of contracts. Legis. lation, professedly directed to the remedy which deprives a party of one remedy, as efficient as existed at the date of the execution of the contract, impairs its obligation; Scobey v. Gibson, 17-572.
9. To give a more efficient remedy, for the enforcement of a contract obligation after breach of the contract, is not to impair its obligation; Hopkins v. Jones, 22-310.
10. Domestic contracts, between citizens of a state, can not be impaired, save by a
bankrupt law, whether by the state - for want of power to enact such a law, or of the United States — for want of jurisdiction of the subject matter. Generally, how. ever, that which pertains to right between parties may be regulated by contract, while that which belongs to the remedy is vested in the law. This, however, applies, only, to executory stipulations; not to those accompanied by a power of execution coupled with an interest; Hopkins v. Jones, 22-310.
11. A statute merely discharging a debtor from imprisonment, for debts contracted between citizens of the state, is valid, without reference to the time when the debt was contracted; aliter, if it discharge the debtor's acquired property, from liability, as well as his person; unless the creditor makes himself a party to proceedings, which lead to such discharge; Pugh v. Bussel, 2 B., 391.
12. An act legalizing proceedings of a term of court, held without authority of law, is constitutional, though retroactive; Walpole v. Elliott, 18-258.
13. A statute of limitations may be retrospective; Pritchard z'. Spencer, 2-486.
14. Statutes which relate to the competency of witnesses, though they relate to past contracts, neither impair the obligations of contracts nor affect vested rights; Ralston v. Lothain, 18-303.
15. General laws authorizing divorce impair no obligation of contract if confined to rights of citizens of the state; aliter if such laws seek to act on rights of citizens of other states; Tolen v. Tolen, 2 B., 407; Hood v. State, 56-263.
16. A statute relieving from penalties, or their consequences, does not impair the obligation of contracts; Wood v. Kennedy, 19-68; nor a statute legalizing and confirming an illegal sale of an infant's land; Davis v. State B’k, 7-316; or, an illegal sale, by a judicial officer; State v. Sickler, 9-67; nor, a statute giving force and effect to contracts which, before, were illegal and void - - as usurious contracts; Andrews v. Russell, 7 B., 474; Haas v. Flint, & B., 67; Grimes v. Doe, 8 B., 371; Justice v. Charles, 1-32; Sparks v. Clapper, 30–204; Pattison v. Jenkins, 33-87.
17. A general statute authorizing the assessment of lands. for the construction of roads, is not in the nature of a contract, between the state and corporation. The repeal of such a statute divests no vested rights; Marion etc. Co. v. Sleeth, 53-35.
18. The territorial grant of lottery franchises, to Vincennes university (September 17, 1870), vested a right, in such university, which could not be impaired, by state constitution or statute; Kellum v. State, 66-588.
19. A state may, in the exercise of its police power, and, in the interest of good morals, take away and abrogate a lottery privilege, previously granted, without impairing the obligations of a contract; Staie v. Woodward, 89–113.
20. The obligation of an executory contract, to convey lands, gives to vendee the vested right to a conveyance of such title as the vendor had when the contract was made. Any subsequent legislation which diminishes such title and, thereby, puts it out of the power of vendor to perform his contract impairs its obligation and is, therefore, void; Wiseman v. Beckwith, 90-187.
21. A mortgage is a contract which confers, on mortgagee, a vested right which the legislature can not, afterward, diminish; Lease v. Owen Lodge, 83–500.
22. Mortgagee being entitled to possession of the mortgaged realty; a statute changing the right applies, only, to mortgages executed subsequent to the statute; Grimes v. Doe, 8 B., 371.
23. The remedy for the collection of a debt - as on a mortgage - may be changed; Jones v. Hopkins, 26-450; Webb v. Moore, 25-4.
24. In so far as a statute operates, by its terms, upon contracts, made prior to its passage, in taking from the purchaser of land, sold on execution, the former right to the rents and profits during the year allowed for redemption, if there be no redemption, it impairs the obligation of contracts and is void; Trav. Ins. Co. v. Brouse, 83-66.
25. There are, generally, no vested rights in statutes, nor in remedies at law; changes therein do not fall within the constitutional prohibition, unless they are of such char. acter as, materially to affect the obligations of contracts. In like manner, statutes which, merely, afford the means for a more efficient enforcement of contracts do not impair their obligations. Such statutes are valid; Bryson v. M'Creary, 102–9.
26. The provision, that no law impairing the obligation of contracts shall ever be made, extends to all rights accruing under all contracts, written or unwritten, express or implied, and whether arising from stipulation of parties or accruing by operation of law; Lewis v. Brackenridge, 1 B., 220.
70. Taking effect of laws. Execution, or enforcement, of a statute is different from the taking effect of a law. The act of May 12, 1869, authorizing counties to subscribe for railroad stock, leaves the execution of the statute, alone, depend. ent on the vote of the people, and is valid; L. M. & B. R. R. Co. v. Geiger, 34–185; so where a statute (March 14, 1867) authorizing cities etc. to subscribe for railroad stock, was dependent for its execution, on a petition; Thompson v. Peru, 29-305.
71. Suspension of laws. Semble, that the term “operation of laws" means the taking effect and continuing in force thereof; Maize v. State, 4-342.
2. The law making power, being vested in the general assembly, the exercise by any other body of power to make, suspend or give law is, necessarily, exeluded; Maize v. State, 4-342; Maize v. Goodman, 7-635.
77. Right to bear arms, A statute prohibiting the carrying of concealed weapons by any person, except travelers, is not unconstitutional; State v. Mitchell, 3 B., 229.
78. Military subject to civil power. The president has a right to govern, through his military officers, by martial law, when and where the civil power of the United States is suspended by force. At all other times and in all other places the civil excludes the martial law; Griffin v. Wilcox, 21-370.
ARTICLE 2-SUFFRAGE AND ELECTIONS. 84. Qualifications of voters. The qualifications of voters as herein defined cannot be added to or changed by legislative enactment. Therefore, so much of section 13 of the act of 1889 (chap. 56, art. 1) which provides that a person who is absent from the state for a period of six months or more, on business of the state or of the United States, shall, at the time he offers to vote, produce a certificate from the county auditor that his name has been continuously since his departure from the state, upon the tax duplicate, for the purpose of taxation, during his absence, and that he is still a tax payer, is unconstitutional and void; since, in addition to the qualifications to vote, as required by this section, it adds, in effect, a property qualification; Morris v. Powell, 125–282.
So inuch of the said act of 1889 (chap. 56, art. 1) which provides that residents of the state who absent themselves from the state for a period of six months or more and persons who have not resided in one county for six months before any election, shall register, and produce a certificate of such registration ninety days before the election to entitle them to vote, is in conflict with this section and is void; for that inasmuch as it requires such voters to declare their intention to become qualified voters and to designate their voting precinct ninety days before the election, the qualification of a residence of ninety days in the precinct is added to the constitutional qualification of a residence of thirty days therein; Morris v. Powell, 125–286.
90. Effect of holding lucrative offices. If an office is purely municipal, the officer not being charged with any duties under the laws of the state, he is not an officer within the meaning of the provision of this section, of the constitution, that no person shall “ hold more than one lucrative office at the same time, except as by this constitution expressly permitted." If, however, the officer be charged with any duties under the laws of the state, for which he is entitled to compensation, the office is a lucrative office within the meaning of this section. The office of trustee of the institute for the education of the deaf and dumb and the office of school trustee are lucrative offices, within the contemplation of this section; wherefore, the acceptance of the former office by an incumbent of the latter vacates the latter; Chambers v. State, ex rel., 127–366.
The office of reporter of supreme court is a lucrative office. Acceptance, by the incumbent, of another lucrative office vacates the former; Kerr v. Jones, 19-351.
2. The office of township trustee is a lucrative office, within the meaning of this section; Foltz v. Kerlin, 105-224.
3. Under this section, the offices of township trustee and supervisors are lucrative; Creighton v. Piper, II-182.
4. The office of colonel of volunteers in the military service of the United States, is not an office in the militia. It is a lucrative office within this section; Kerr v. Jones, 19–351; Mehringer v. State etc., 20-103.