Board of County Commissioners v. George

AdaMS, J. Tbe defendant’s counsel denounces tbe validity of tbe statute in question on tbe ground tbat it deprives bis client of rights and privileges guaranteed by tbe organic law. His chief objection is based on tbe proposition tbat tbe statutory provision for tbe assessment of damages by three freeholders is an express denial of tbe right of trial by jury. We do not understand tbe defendant’s counsel to contend tbat tbe provision is in conflict with tbe “due process clause” of the Federal Constitution, for tbe Supreme Court of tbe United States has held tbat tbe Seventh Amendment relates only to trials in tbe Federal courts, and tbat trial by jury in suits at common law in tbe State courts is not a privilege or immunity of national citizenship which tbe states are forbidden by tbe Fourteenth Amendment to abridge. Walker v. Sauvinet, 92 U. S., 90; Montana Co. v. Mining Co., 152 U. S., 171; Marvin v. Trout, 199 U. S., 212. Eut be insists tbat tbe statute conflicts with Art. I, sec. 19, of tbe Constitution of North Carolina, which is as follows : “In all controversies at law respecting property, tbe ancient mode of trial by jury is one of the best securities of tbe rights of tbe people, and ought to remain sacred and inviolable.” The. words “controversies at law” include all civil actions in which facts, involving either legal or equitable elements, are put in issue by tbe pleadings, but they do not include questions of -fact, or proceedings which are purely equitable. Porter v. Armstrong, 134 N. C., 447; Caldwell v. Wilson, 121 N. C., 425; Worthy v. Shields, 90 N. C., 192. “Trial” refers to a dispute and issue of fact, and the expression “trial by jury,” as used in the statute, does not necessarily signify that every legal controversy is to be determined by a-jury. Tbe section under consideration guarantees to tbe citizen tbe right to have submitted to and determined by a jury every issue of fact properly and legally raised by tbe pleadings in a civil action. If tbe statute before us wore in conflict with such constitutional provision, it could not be sustained. But it does not purport to abridge tbe defendant’s right. Conceding tbat tbe defendant, although duly notified, was not required to attend the bearing before tbe freeholders, and therefore was not barred by their award, still, it does not necessarily follow that tbe provision for the assessment of damages is for this reason in conflict with .the Constitution. Tbe statute is a police regulation evidently designed as between tbe claimant and the' county to fix'a limitation upon tbe demand of tbe former and upon the liability of tbe latter. When the claimant invokes the aid of the statute and elects- to-abide by tbe method therein prescribed be cannot thereafter claim either from tbe county or from tbe owner of tbe animal any damages in excess *418 of the amount awarded by the freeholders. Rut the amount awarded' the claimant is not an estoppel upon the owner of the dog. The latter’s right of trial by jury is not denied, but is amply protected by the provision which empowers the commissioners to bring suit. When such suit is brought the owner of the dog may submit to the jury any issues joined upon the pleadings, and by this means preserve his constitutional right. The sentence, “He shall reimburse the county to the amount paid out for such injury or destruction,” imports, not that the defendant is bound by the freeholders’ award, but that the commissioners shall not in any event recover more than the amount paid to the claimant. Upon the trial it would be incumbent upon the commissioners to show by the preponderance of the evidence that the defendant was the owner of the dog, as well as the amount of the damage; and it would be open to the defendant to rely upon failure of the plaintiff’s proof and, if necessary, upon evidence offered in rebuttal. • This construction of the statute affords the owner of the dog the opportunity to present every defense he would be entitled to in case of suit brought by the owner of the injured or destroyed sheep. The freeholders assessed the claimant’s damages at $43; the fees of the freeholders were $12. His Honor instructed the jury that they might award damages “not exceeding the $43 and the $12 cost.” The defendant excepted to this instruction on' the ground that the statute provides for reimbursement to the extent of the amount paid by the county “for such injury or destruction,” and not for cost. The expression “amount paid out for such injury or destruction,” construed in connection with other provisions in the statute, imports the amount paid out on account of such injury or destruction. If the defendant had insisted on his right to have the jury find whether the cost was reasonable, we should have been inclined to sustain his exception; but his proposition is that the plaintiff as a matter of law cannot recover the cost which is properly incurred. Testimony as to the length of time that had elapsed between the death and the discovery of the sheep was properly admitted. It was not hearsay evidence; it was an expression of the judgment or estimate of a nonexpert witness based upon personal observation of the carcass, and not an expression of a theoretical or scientific opinion, or a deduction from the testimony of others. Ives v. Lumber Co., 147 N. C., 307; Bennett v. Mfg. Co., ib., 621; Britt v. R. R., 148 N. C., 37; Murdock v. R. R., 159 N. C., 131; Barnes v. R. R., 178 N. C., 268; Hassell v. Daniels, 180 N. C., 38. We have examined and duly considered all the exceptions, and in the record we find no error. No error.