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ed to a local board of commissioners, notwithstanding the city charter granted the right of local legislation "relative to preserving the city from exposure to fire."

2. A city ordinance void as to one provision is wholly void when it is apparent that it would not have been enacted without that provision.

Quo warranto by the attorney general against George G. Lowell and others. Judgment for plaintiff.

In October, 1891, the city councils of Dover adopted an ordinance which provided that the fire department of the city should consist of a board of three fire commissioners, a chief engineer, and one first and one second engineer, and such engine men and other members as the board of fire commissioners should deem necessary. The fire commissioners were to be elected by the city councils, and were authorized to make such rules and regulations for the government of all the officers and members of the fire department as they might deem fit and proper. It was also made their duty annually in March to appoint the board of engineers and all other members of the fire department. The ordinance contained other minor provisions. The defendants were duly elected fire commissioners, and have acted, and claim the right to act, as such by virtue of the ordinance.

J. S. H. Frink, Joshua G. Hall, and J. Ryan, Jr., for plaintiff. William L. Foster, W. F. Nason, and Robert G. Pike, for defendants.

PER CURIAM.1 The general law establishes a fire department in every town in which apparatus for the extinguishment of fires is provided at the public expense, and fire wards or fire engineers are duly elected or appointed. The fire wards, otherwise called "fire engineers," constitute a board in whom are vested important powers and duties. Pub. St. c. 115. The evident purpose of the legislature in the passage of this chapter was to secure adequate protection of property against fire. It is a system of law intended to have uniform operation throughout the state, such towns excepted as may choose not to have fire apparatus, and not to elect a board of fire engineers. It was evidently intended that every town having a fire department should have the system prescribed by chapter 115. And there is no reason to hold that a city is not a town within the meaning of the general law on this subject. Pub. St. c. 2, § 5. Towns may choose a chief fire ward or engineer and one or more assistants (Id. c. 43, § 25), and the powers of towns are exercised by city councils (Id. c. 50, § 1).

It is claimed by the defendants that the city of Dover, while possessing all the powers conferred upon towns by the statute referred to, is not limited thereby as towns are; that its charter gave it the power of local legislation "relative to preserving said city from exposure to fire," and that the ordinance establishing a board of fire commissioners was

1 See footnote, 36 Atl. 607.

authorized by this charter provision and by section 2, c. 50, Pub. St., which provides that "the city councils shall have power to provide for the appointment or election of all necessary officers for the good government of the city not otherwise provided for." It is a sufficient answer to this argument to say that neither the charter nor the general law authorized the city councils to delegate their statutory power of electing fire engineers to a local board called "fire commissioners." The manner of their election was "otherwise provided for" by the legislature. Whatever authority the city has under its charter with reference to protection from fire, it did not acquire the right to repeal or suspend the statute providing for the election of a board of engineers, or to establish a board consisting of those persons and such others as three fire commissioners may deem necessary. The engineers elected in the manner provided in the statute are public officers (Edgerly v. Concord, 62 N. H. 8, 20); and it is no more competent for the city councils to prescribe some other method for their election than it would be for that body to delegate the duty of electing a city marshal, assessors of taxes, and other public officers to a committee of taxpayers. For similar reasons, if the city councils, under its charter, might establish an independent board for some purposes of fire protection, they could not authorize that board to make additions to the board of engineers. The duty of electing the "chief fire ward and one or more assistants" (Pub. St. c. 43, § 25) is devolved upon the city councils, and no part of that duty can be exercised under an ordinance which attempts to impose it upon other municipal officers. In these respects the ordinance in question is repugnant to law, and void. And as it is apparent that no part of the ordinance would have been enacted if it had been understood that its most important changes of the general law would be inoperative, the whole ordinance is void. 1 Dill. Mun. Corp. § 421; Warren v. Mayor, etc., of Charlestown, 2 Gray, 84, 98. No sufficient reason appears why quo warranto is not an adequate, convenient, and appropriate method of procedure for the determination of this controversy. Judgment for the plaintiff.

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administrator knew that plaintiff had occupied | such mill since it was built, and that he claimed to own the property, and objected to the sale. Held, that there was sufficient evidence to sustain a finding for plaintiff.

Exceptions from Carroll county.

Bill by Joseph W. Roberts against Francis H. Lord, administrator, and another, for specific performance of a contract. The facts were found by the court in favor of plaintiff, and defendant Lord excepts. Overruled.

The defendant Lord is the administrator of the estate of Charles L. Perkins, who died in 1886. In 1877, Perkins, being the owner of a large quantity of lumber in Ossipee, offered to give the plaintiff land sufficient for the purposes of a sawmill, and to assist him with labor and materials, if he would build a mill on his land. The plaintiff accepted the proposition, and at once built a permanent sawmill, costing about $4,000, on Perkins' land; also, during the lifetime of Perkins, he built three dwelling houses, a store, and a stable upon the land used in connection with the mill, and

has been in the possession and occupation of

the land ever since, as the owner thereof. In 1887, Lord, as administrator, sold the land in question to William H. Lord, and gave him a deed of it. In 1889 the defendant Lord acquired this title, and claims to own the land. Both the purchaser at the sale and the administrator knew that the plaintiff had occupied the mill since it was built, and that he claimed to own the property and objected to the sale. The court found that the plaintiff was entitled to a decree, and the defendant Lord excepted.

Frank Weeks, for plaintiff. John B. Nash, for defendants.

PER CURIAM.1 There was sufficient evidence to sustain the finding for the plaintiff. Exceptions overruled.

CLARK, J., did not sit. The others concurred.

STATE v. GERRY.

(Supreme Court of New Hampshire. Merrimack. July 31, 1896.) CONSTITUTIONAL LAW-RIGHT TO JURY TRIALPOLICE COURT-JURISDICTION.

1. Pub. St. c. 252, §§ 2-4, provide that a person sentenced for an offense by a police court may appeal to the supreme court by entering into a recognizance with sureties, and that, if he fail to prosecute his appeal with effect, his recognizance shall be forfeited; and the police court may tax certain additional costs, and enforce the original sentence. Laws 1895, c. 117, § 1, provides that: "Police courts shall have concurrent jurisdiction with the supreme court in any criminal case, where the fine does not exceed $200 and the term of imprisonment does not exceed one year. In case of an appeal in any case which is beyond the jurisdiction of a justice of the peace, the appellant shall enter into a recog

1 See footnote, 36 Atl. 607.

nizance as in other cases." Cases punishable by the maximum fine and imprisonment are beyond the jurisdiction of a justice of the peace. Held, that Laws 1895, c. 117, § 1, is void, as in violation of the constitutional guaranty that, except for offenses within the jurisdiction of a justice of the peace, a person shall have an untrammeled right to trial by jury.

2. The right of appeal is that given by Pub. St. c. 252; but, if the police court could grant an unconditional appeal, the mere obligation to appeal in order to gain a jury trial is unwarranted by the constitution.

Clark, Wallace, and Pike, JJ., dissenting.
Exceptions from Merrimack county.

One Gerry was convicted of an aggravated assault, and he appeals from the sentence of the police court. The defendant was arraigned before the police court of Concord, and pleaded not guilty. He was tried by the police court, found guilty, and sentenced to pay a fine of $100. He appealed to the supreme court, and recognized for his appearance, and to enter and prosecute his appeal. He moved that the appeal be dismissed because the offense charged is beyond the jurisdiction of the police court, and the judgment appealed from is unauthorized and void. Subject to his exception, the motion was denied. Exceptions sustained.

W. D. Hardy, H. I. Goss, Geo. B. Cox, J. W. Remick, and D. C. Remick, for the State. A. F. Burbank, for defendant.

CARPENTER, C. J. An aggravated assault is punishable by a fine not exceeding $200, or by imprisonment not exceeding one year, or by both. Pub. St. c. 278, § 21. If the police court had no jurisdiction to try and determine the question of the defendant's guilt or innocence of the offense charged in the.complaint, the judgment is void, and the appeal must be dismissed. State v. Dolby, 49 N. H. 483; State v. Runnals, Id. 498; State v. Thornton, 63 N. H. 114; State v. Perkins, Id. 89. By the act of March 29, 1895 (Laws 1895, c. 117, § 1), jurisdiction of all criminal cases where the fine does not exceed $200, and the term of imprisonment does not exceed one year, is expressly conferred upon police courts; and if, under the constitution, the legislature had the power to enact it, the defendant's motion to dismiss the appeal was properly denied. "No subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate but by the judgment of his peers or by the law of the land." Bill of Rights, art. 15. It has never been denied or doubted that by this article trial by jury according to the course of the common law is secured to the defendant in all criminal cases without exception. State v. Ray, 63 N. H. 406, 407. It is the only provision of the constitution relating to trial by jury in prosecutions for crimes not capital. Strike it out, and there is nothing to prevent the enactment of a statute providing that all criminal offenses now known to our law, except murder in

the first degree, may be tried and determined without a jury by the supreme court, by a justice of the peace, or by a police court. The framers of the constitution, who took care to secure a jury trial to the parties in a controversy over the smallest amount of property (Bill of Rights, art. 20; Const. 1792, art. 77), did not intend to leave in doubt the right of persons charged with an offense, however trivial (63 N. H. 407), against the criminal law, to a like trial. Their language means what they understood it to mean. "The language of the constitution is to be understood in the sense in which it was used at the time of its adoption." Opinion of Justices, 44 N. H. 633, 635; Id., 41 N. H. 550, 551; Hale v. Everett, 53 N. H. 9, 170; Copp v. Henniker, 55 N. H. 179, 193; State v. Saunders, 66 N. H. 39, 76, 25 Atl. 588; State v. Griffin, 66 N. H. 326, 327, 29 Atl. 414. Whatever the parties to the Great Charter understood in 1215 to be the meaning of the words "by the judgment of his peers" (Hurtado v. California, 110 U. S. 516, 529, 4 Sup. Ct. 111, 292; 1 Steph. Hist. Cr. Law Eng. 162; 1 Pol. & M. Hist. Eng. Law, 152, note, 518; Hall, Mid. Ages, 342, note), our fathers, in 1784, as well as the first continental congress, in 1774, understood them to mean trial by jury,--that they secured to them "the great and inestimable privilege of being tried by their peers of the vicinage according to the course" of the common law. 2 Kent, Comm. 6. Such was the understanding of Coke when he wrote his commentary on the Great Charter. 2 Inst. 28, 29, 48-50. Precisely what significance is to be given to the words "or the law of the land" need not now be considered. Mayo v. Wilson, 1 N. H. 53, 56-59; Dartmouth College v. Woodward, Id. 111, 130; 2 Kent, Comm. 13; Cooley, Const. Lim. 353, 356; 2 Inst. 50-52. Whatever may be their meaning, they do not restrict or qualify the right of trial by jury in prosecutions for crime. "The constitution contains no definition or description of the trial by jury. * * * It is referred to in the bill of rights as an institution which constant practice from the earliest periods of the colonial history had made perfectly familiar to the people; and when trial by jury is spoken of in the constitution the term must be understood to mean that method of trial according to the common law of England, and substantially such as was used and practiced at that time in this state." Chief Justice Perley's charge to the grand jury at Plymouth, November, 1866. it "is a trial according to the course of the common law, and the same in substance as that which was in use when the constitution was framed." East Kingston v. Towle, 48 N. H. 57, 64; Copp v. Henniker, 55 N. H. 179, 193-203; King v. Hopkins, 57 N. H. 334, 350; Story, Const. 1783. "The essentials of jury trial * * are shown by common law and by history." State v. Saunders, 66 N. H. 39, 76, 25 Atl. 588, 590. "Accusations of criminal conduct are tried at the common law by jury; and wherever the right to this trial is guarantied by 38 A.-18

the constitution without qualification or restriction it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused." Cooley, Const. Lim. (4th Ed.) 394. It is essential to a jury trial that it be had in a court of competent jurisdiction, presided over by a judge qualified to instruct the jury in matters of law. Pierce v. State, 13 N. H. 536, 566-569; State v. Saunders, 66 N. H. 39, 76, 25 Atl. 588. "Another excellency of this trial is this: that the judge is always present at the time of the evidence given in it. Herein he is able in matters of law emerging upon the evidence to direct them, and also in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies." Hale, Com. Law, 291, 292.

There must be a lawful accusation. This is as essential to a common-law trial by jury as any other incident,-as, for example, the number of the jurors, and the unanimity of their verdict. By the common law of the colony no one could be subjected to a trial for any criminal offense beyond the jurisdiction of a justice of the peace, except upon an indictment returned by a grand jury in cases of felony, or in the case of misdemeanors, on such indictment, or upon an information filed by the attorney general. The English common law respecting appeals of murder and other crimes (4 Bl. Comm. 312-316), and its rule that one found guilty of a felony by the verdict of a jury in a civil cause might, without other accusation, be put on trial for the crime (1 Chit. Cr. Law, 164, 165; Bac. Abr. "Indictment," B.), were never adopted here. The provincial act of 1718 (Prov. Laws 1771, c. 86) relating to the power and duty of coroners in taking inquisitions of death was declaratory of the common law. Bac. Abr. "Coroner," C.; 1 East, P. C. 381. It is not material to the present inquiry whether the colony adopted the English common-law doctrine that upon the inquisition alone one could be put on his trial for the homicide (4 Bl. Comm. 301, 302), because a coroner's jury was a grand jury (1 Hale, P. C. 161, note; 2 Hale (P. C. 59; 2 Burn, J. P. [29th Ed.] 29; Act 1718, supra; Act June 10, 1791; Laws 1797, p. 132), and their inquisition an indictment (2 Inst. 32, 550; 4 Cоkе, 46, 47; Reg. v. Ingham, 5 Best & S. 257, 270). 270). If in colonial times or since there ever was such a trial, no record or historical mention of it has been produced. Without an accusation by indictment or information, no one could be tried or punished for any criminal offense not within the jurisdiction of a justice of the peace. The required accusation was not a mere form of procedure, but a substantial protection of every citizen against false and malicious charges of crime; a valuable security of his "life, liberty, and estate," and of his enjoyment thereof. "As for trials in causes

pense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive prosecutions, and as one of the ancient immunities and privileges of English liberty." Jones v. Robbins, 8 Gray, 329, 344.

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In the case of misdemeanors, the requirement of an information filed by a sworn public officer, learned in the law, who has no motive "other than to protect and promote the public interest" (State v. Dover, 9 N. H. 472), and whose duty it is as much to secure the innocent from persecution as to prosecute the guilty, affords a protection against unfounded and malignant charges at least equal to that afforded by the grand jury in the case of felonies. It would be much greater than that of the latter if the proceedings and practice in the grand jury room were the same here as in England, where, to prevent vexatious indictments for certain misdemeanors, it has been found necessary to provide by statute that no one shall lay before the grand jury a charge of certain misdemeanors without permission of a judge, the attorney general, or of the solicitor general, unless he is bound over to prosecute by a magistrate. The criminal code commissioners in 1879 recommended that the restriction be extended to all offenses. 1 Steph. Hist. Cr. Law Eng. 293, 294. In this state grand juries have, it is believed, usually, if not always, been instructed not to return a bill against the accused unless upon the evidence laid before them-the state's evidence alone-they are satisfied of his guilt beyond a reasonable doubt. 1 Chit. Cr. Law, 318; 4 Bl. Comm. 303. But, whether this is the true rule or not, the law that no man can be publicly arraigned and put on trial for any alleged crime upon the mere accusation of his neighbor, though made under oath, until the charge has been investigated, and found true, or probably true, by a grand jury of his fellows, or an impartial public officer, is an invaluable protection against false and malignant accu

criminal, they have this further advantage: that regularly the accusation, as preparatory to a trial, is by a grand jury. So that, as no man's interest, according to the course of the common law, is to be tried or determined without the oaths of a jury of twelve men, so no man's life is to be tried but by the oaths of twelve men, and by the preparatory accusation or indictment by twelve men or more, precedent to his trial." Hale, Com. Law, 295. "In times of difficulty and danger more is to be apprehended from the violence and partiality of judges appointed by the crown in suits between the king and the subject than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier of a presentment and a trial by jury between the liberties of the people and the prerogative of the crown. *** The founders of the English law have with excellent forecast contrived that no man should be called to answer to the king for any capital crime unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury; and that the truth of every accusation * should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, * * * but also from all secret machinations which may sap and undermine it by introducing new and arbitrary methods of trial by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first, *** let it be again remembered *** that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution, and that, though begun in trifles, the precedent may gradually increase, and spread to the utter disuse of juries in questions of the most momentous concern." 4 Bl. Comm. 349, 350. With this language of Blackstone the members of the bar who assisted in framing the constitution in 1784 were familiar. His work was the chief, if not the only, legal text-sations of crime. In the exceptional class of book they possessed. It is morally certain that the people among their reserved rights did not intend to omit, and did not understand that they did omit, any part of this "twofold barrier" against oppression, this "sacred bulwark" of their liberties. "The grand jury perform most important public functions, and are a great security to the citizens against vindictive prosecutions either by the government, or by political partisans, or by private enemies." Story, Const. § 1779. "If *** the people are enlightened and honest, and zealous in defense of their rights and liberties, it will be impossible to surprise them into a surrender of a single valuable appendage of the trial by jury." Id. § 1785. "The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, ex

cases referred to,-cases of which a justice of the peace in 1784 had jurisdiction,-the right of the accused was to obtain a jury trial by taking an appeal from the judgment of the justice on giving security to prosecute it, and paying costs. State v. Griffin, 66 N. H. 326, 29 Atl. 414. This burden upon the right of jury trial has been maintained under the constitution upon the sole ground that it existed when the constitution was adopted. Copp v. Henniker, 55 N. H. 179, 195, 196. In all other cases trial by jury was free. accused was not obliged to purchase, or even to demand, it. Without it, he could not be convicted or punished. It was his right not to be "deprived of life, liberty, or estate" for any criminal offense, until in the due course of the common law a verdict of guilty against

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him was obtained. The burden rested not upon him to procure either a trial or an acquittal. It rested on the state-the prosecution-to obtain a trial by jury, as well as a conviction by their verdict. If he pleaded not guilty, he was not, and could not be, required to do or say anything more. The law esteemed him innocent until a verdict to the contrary was rendered. The common lawthe words of the Great Charter-assured him that he should not be condemned or punished for any criminal offense until a verdict of guilty by a jury of his equals was first obtained against him. That the common-law right of trial by jury in criminal cases as it existed here in 1784, with all its incidents, "so far, at least, as they can be regarded as tending to the protection of the accused," is secured to the people by the constitution, is not open to doubt. It is established by numerous judgments of the court, and is not questioned by the counsel for the state.

The question presented is whether this right is infringed or substantially impaired by the act of March 29, 1895 (Laws 1895, c. 117), which provides that: "Police courts shall have concurrent jurisdiction with the supreme court in any criminal case where the fine does not exceed two hundred dollars and the term of imprisonment does not exceed one year. In case of an appeal in any case which is beyond the jurisdiction of a justice of the peace, the appellant shall enter into recognizance as in other cases in any sum not less than one hundred dollars, nor more than three hundred dollars." It is not claimed that offenses punishable by such a fine or term of imprisonment were, in 1784, within the jurisdiction of a justice of the peace. In substance, the act (on the interpretation most favorable to the state) declares that a person accused in the cases specified may be tried, found guilty, and condemned to the prescribed punishment by a police judge, subject only to the right of appeal provided by the general law as follows: "A person sentenced for an offense by a police court * * may at the time such sentence is declared appeal therefrom to the supreme court at the trial term next to be holden for the county. Before the appeal is allowed the appellant shall enter recognizance with sufficient sureties in a reasonable sum, not exceeding one hundred dollars, to appear at the court of appeal, to prosecute his appeal with effect, to abide the order of the court thereon, and if so required, to be of good behavior in the meantime. If the appellant fails to enter and prosecute his appeal * * * his recognizance shall be declared forfeited, and the clerk * * * shall transmit to the *** police court appeal** police court appealed from, a certificate of such forfeiture. The justice shall record such certificate, shall add to the costs fees for copies sent to the clerk, fifty cents for the clerk's certificate, and fifty cents for recording it; and he shall issue a mittimus to carry into effect the original sentence with such increased costs." Pub. St.

c. 252, §§ 2-4. If, because of his poverty, or because he is a stranger in a strange land, or for other reason, he is unable to obtain sufficient sureties, or to pay the required fees, the accused has no appeal, and no jury trial. If he secures his appeal, but is unable, or for any cause fails, to enter and prosecute it, not only is the sentence of the police court affirmed, but he is charged with additional costs, and his recognizance is forfeited. In other words, for taking and failing to pursue his appeal he is subjected not only to the original sentence, but also to the penalty of paying costs, and the amount of his recognizance. The only ground upon which it has been held or claimed that under the constitution the right of jury trial may be subjected to these burdens is that in 1784 they existed by law in cases within the jurisdiction of a justiceof the peace; that it is, with these burdensupon it, the same trial, in substance, as that which was in use in those cases when the constitution was framed. constitution was framed. It is not questioned that the imposition of these burdens on the right of jury trial in any other cases is forbidden by the constitution. "If, in a class of criminal cases, at the date of the constitution, a defendant was entitled to a jury trial upon his complying with the single condition of remaining in custody, or giving security for his appearance merely, as he might elect, his constitutional right would be infringed by such a material alteration of the terms on which he can enjoy the right, as making his enjoyment of it depend upon his paying a jury fee, or the costs of the prosecution, or giving security for his appearance without the option of remaining in custody, or giving security for anything else than his appearance, or incurring the risk of increased punishment, or submitting to anything else that would operate as a penalty for the exercise of the right." Copp v. Henniker, 55 N. H. 179, 202; State v. Griffin, 66 N. H. 326, 328, 29 Atl. 414, and cases cited.

But it is suggested that the court may grant an appeal without requiring the defendant to comply with the requirements of the law regulating appeals; that an appeal may be allowed upon the defendant's merely recognizing for his appearance, as in cases where he is bound over to answer. The statute admits of only two possible constructions. It either does or does not confer the right of appeal. If it does not, nobody contends that it can be sustained. If it does, it gives the appeal provided by the general law. This is undoubtedly the true construction. It is what the legislature intended. The statute is to be read precisely as if the general law of appeal were repeated in it and re-enacted. But there was no occasion for re-enacting the general law. Statutes are construed in view of the existing law. The general law of appeal-the provision that any person sentenced by a police court may appeal therefrom-extends to every case created by subsequent legislation that falls within it. Roberts v. Stark, 47 N. H.

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