Bonner, Associate Justice.
The city of McKinney having condemned part of the homestead property of appellant Rhine for the purpose of opening a street within the corporate limits, under sec. 130, general incorporation act, approved March 15, 1875 (Laws second session 14th Leg., 150, re-enacted by Revised Statutes, art. 478), he sued out an injunction to restrain further proceedings, which on motion was dissolved. Rhine not desiring that his petition be continued over for further hearing as an original bill, the same was dismissed, and this appeal taken.
At a former term the previous submission was set aside, and the cause referred to counsel for further brief and argument upon the following, among other points:
“ Does the statute under which appellee claims authority to condemn appellant’s property for public use, make just and reasonable provision for ascertaining the fair value of the property condemned, or the enforcement of the payment of the amount awarded him, in this, that by the statute the value of the property is to be ascertained and determined by commissioners appointed and selected altogether by the city for whose use the property is taken.”
So much of this section of the statute as is necessary for the purposes of this opinion, provides that when the city shall determine that it is necessary to take private property for opening any public street, and the amount of compensation cannot be agreed upon, the city council shall, upon its own motion, or upon the application of the owner of the property, appoint three disinterested freeholders of the city, who, after having been sworn, and after having heard the parties at a designated time and place, shall determine the amount of compensation, and report the same to the city council.
It is objected upon other grounds that the commissioners are appointed ex parte by the city council alone, and selected from freeholders of the city; that this is not such fair and impartial tribunal as is guaranteed by the constitution, which [360]*360provides that no one shall be deprived of his property except by due process of law, and that private property shall not be taken for public use without just compensation therefor.
It is a general rule of law, founded upon the weakness of human nature, and in accord with that invocation given us by divine wisdom, “Lead us not into temptation,” that no man should be judge in his own cause; and, for a like reason, it would follow that no one, without the consent of the other party, should appoint his own judge.
No system of human laws, however, is absolutely perfect, and in the actual administration of government, exceptions, more theoretical than practical, have been made to this general rule.
It is of frequent occurrence, that judges who represent the sovereign power of the state, district, county or municipality, preside over cases in which the state, district, county or municipality are parties and have a direct interest. Jurors determine cases in which their verdict may indirectly decrease their own burden of taxation. Witnesses, even under the strict rules of evidence formerly in force, were not disqualified in such cases.
These exceptions are based upon the reason that the individual interest in such cases is supposed to be so remote and insignificant as not to be sufficient to affect the judgment or influence the conduct of the judge, juror or witness. Cooley’s Const. Lim., 412; Peck v. The Freeholders of Essex, Spencer’s R. (N. J.), 457; Commonwealth v. Emery, 11 Cush., 406; Commonwealth v. Ryan, 5 Mass., 90; Commonwealth v. Reed, 1 Gray, 472. But this rule should apply only to those regular tribunals created under the constitution and laws to decide all controversies for the general public which may come within their appropriate jurisdiction.
Thus selected as a class for the determination of a certain character of litigation generally, without reference to that pending or which may be instituted, any interest in questions which may affect them only indirectly, as individual members [361]*361of the body politic, is considered, upon the ground of public necessity, so remote as not practically to disqualify them.
As special tribunals, however, like the one constituted by the act under consideration, are selected for the particular matter in controversy, and are exceptions to the ordinary mode of procedure, no presumptions will be indulged in favor of the legality of their appointment or proceedings. Particularly should this be the case where an inferior branch of the body politic exercises two among the highest prerogatives of sovereignty: that of the right of eminent domain, to condemn private property, and the consequent right of taxation, to pay its assessed value. Dillon on Mun. Corp., §§ 467, 468, 470, 481; Cooley’s Const. Lim., 528.
Although there is a long line of decisions which settle conclusively the question that in the assessment, under the right of eminent domain, the party whose land is sought to be condemned is not entitled, as a matter of right, to a trial by jury, unless given by express terms in the constitution or law, yet the proceeding is judicial in its character, and should be before an impartial tribunal, under the usual rights and privileges which attend judicial investigation. Cooley’s Const. Lim., 562; Powers v. Bears, 12 Wis., 214.
The proceeding being summary in its character, is the greater reason why the tribunal should be impartial.
By above provisions of this section of the statute, the city council have the exclusive right to select the appraisers, not even restricted, as under some charters, to a selection by ballot; and no right of appeal is given.
In a case originating in proceedings to widen a street in the city of Milwaukee, the supreme court of the state of Wisconsin, in commenting upon a provision in the charter of that city similar in principle to the one now before the court, says:
“ It must be obvious that a proceeding under this charter to condemn and set apart property belonging to an individual for the use of the public, is an adversary proceeding, wherein [362]*362the municipal corporation of the city of Milwaukee, representing the public, is a party on the one side, and the person whose property it is proposed to take is a party on the other side. By the 20th section, it will be seen power is given the common council to appoint jurors in the place of any one who may neglect or refuse to serve of those first appointed by the judge, whose duty it is to determine the amount of damages to be paid the owner of the land. A majority, or even all the jurors selected to establish the necessity of taking the property, may refuse to act in fixing the amount of damages, in which case the common council, one of the parties ex parte, may appoint a jury, which shall determine the amount of damages the city must pay. It is impossible to comment in a proper manner upon such a provision, which confounds all our notions of fairness, justice and right. Nor does it improve the character of the provision to find that the award of the jury thus selected must be confirmed by a resolution of the board of the common council before it is binding, and that the action of the board is conclusive and final upon the rights of the parties interested therein, and from which there is no appeal.” Lumsden v. Milwaukee City, 8 Wis., 494.
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Bonner, Associate Justice.
The city of McKinney having condemned part of the homestead property of appellant Rhine for the purpose of opening a street within the corporate limits, under sec. 130, general incorporation act, approved March 15, 1875 (Laws second session 14th Leg., 150, re-enacted by Revised Statutes, art. 478), he sued out an injunction to restrain further proceedings, which on motion was dissolved. Rhine not desiring that his petition be continued over for further hearing as an original bill, the same was dismissed, and this appeal taken.
At a former term the previous submission was set aside, and the cause referred to counsel for further brief and argument upon the following, among other points:
“ Does the statute under which appellee claims authority to condemn appellant’s property for public use, make just and reasonable provision for ascertaining the fair value of the property condemned, or the enforcement of the payment of the amount awarded him, in this, that by the statute the value of the property is to be ascertained and determined by commissioners appointed and selected altogether by the city for whose use the property is taken.”
So much of this section of the statute as is necessary for the purposes of this opinion, provides that when the city shall determine that it is necessary to take private property for opening any public street, and the amount of compensation cannot be agreed upon, the city council shall, upon its own motion, or upon the application of the owner of the property, appoint three disinterested freeholders of the city, who, after having been sworn, and after having heard the parties at a designated time and place, shall determine the amount of compensation, and report the same to the city council.
It is objected upon other grounds that the commissioners are appointed ex parte by the city council alone, and selected from freeholders of the city; that this is not such fair and impartial tribunal as is guaranteed by the constitution, which [360]*360provides that no one shall be deprived of his property except by due process of law, and that private property shall not be taken for public use without just compensation therefor.
It is a general rule of law, founded upon the weakness of human nature, and in accord with that invocation given us by divine wisdom, “Lead us not into temptation,” that no man should be judge in his own cause; and, for a like reason, it would follow that no one, without the consent of the other party, should appoint his own judge.
No system of human laws, however, is absolutely perfect, and in the actual administration of government, exceptions, more theoretical than practical, have been made to this general rule.
It is of frequent occurrence, that judges who represent the sovereign power of the state, district, county or municipality, preside over cases in which the state, district, county or municipality are parties and have a direct interest. Jurors determine cases in which their verdict may indirectly decrease their own burden of taxation. Witnesses, even under the strict rules of evidence formerly in force, were not disqualified in such cases.
These exceptions are based upon the reason that the individual interest in such cases is supposed to be so remote and insignificant as not to be sufficient to affect the judgment or influence the conduct of the judge, juror or witness. Cooley’s Const. Lim., 412; Peck v. The Freeholders of Essex, Spencer’s R. (N. J.), 457; Commonwealth v. Emery, 11 Cush., 406; Commonwealth v. Ryan, 5 Mass., 90; Commonwealth v. Reed, 1 Gray, 472. But this rule should apply only to those regular tribunals created under the constitution and laws to decide all controversies for the general public which may come within their appropriate jurisdiction.
Thus selected as a class for the determination of a certain character of litigation generally, without reference to that pending or which may be instituted, any interest in questions which may affect them only indirectly, as individual members [361]*361of the body politic, is considered, upon the ground of public necessity, so remote as not practically to disqualify them.
As special tribunals, however, like the one constituted by the act under consideration, are selected for the particular matter in controversy, and are exceptions to the ordinary mode of procedure, no presumptions will be indulged in favor of the legality of their appointment or proceedings. Particularly should this be the case where an inferior branch of the body politic exercises two among the highest prerogatives of sovereignty: that of the right of eminent domain, to condemn private property, and the consequent right of taxation, to pay its assessed value. Dillon on Mun. Corp., §§ 467, 468, 470, 481; Cooley’s Const. Lim., 528.
Although there is a long line of decisions which settle conclusively the question that in the assessment, under the right of eminent domain, the party whose land is sought to be condemned is not entitled, as a matter of right, to a trial by jury, unless given by express terms in the constitution or law, yet the proceeding is judicial in its character, and should be before an impartial tribunal, under the usual rights and privileges which attend judicial investigation. Cooley’s Const. Lim., 562; Powers v. Bears, 12 Wis., 214.
The proceeding being summary in its character, is the greater reason why the tribunal should be impartial.
By above provisions of this section of the statute, the city council have the exclusive right to select the appraisers, not even restricted, as under some charters, to a selection by ballot; and no right of appeal is given.
In a case originating in proceedings to widen a street in the city of Milwaukee, the supreme court of the state of Wisconsin, in commenting upon a provision in the charter of that city similar in principle to the one now before the court, says:
“ It must be obvious that a proceeding under this charter to condemn and set apart property belonging to an individual for the use of the public, is an adversary proceeding, wherein [362]*362the municipal corporation of the city of Milwaukee, representing the public, is a party on the one side, and the person whose property it is proposed to take is a party on the other side. By the 20th section, it will be seen power is given the common council to appoint jurors in the place of any one who may neglect or refuse to serve of those first appointed by the judge, whose duty it is to determine the amount of damages to be paid the owner of the land. A majority, or even all the jurors selected to establish the necessity of taking the property, may refuse to act in fixing the amount of damages, in which case the common council, one of the parties ex parte, may appoint a jury, which shall determine the amount of damages the city must pay. It is impossible to comment in a proper manner upon such a provision, which confounds all our notions of fairness, justice and right. Nor does it improve the character of the provision to find that the award of the jury thus selected must be confirmed by a resolution of the board of the common council before it is binding, and that the action of the board is conclusive and final upon the rights of the parties interested therein, and from which there is no appeal.” Lumsden v. Milwaukee City, 8 Wis., 494.
In ordinary trials, even when the state is a party and consequently the public interested, the right of challenge to jurors is allowed. In this summary proceeding, the commission acts both as court and jury, and it is certainly in consonance with the general policy of our system of government, that the appointment should be made by some authority as far removed as practicable from any undue influence, bias or prejudice. This, for all practical purposes, could readily be done by some of the established tribunals not directly connected with the municipality. In any event, it would not seem to be a fair and impartial mode to have the appointment made, ex parte, by the corporation to be benefited, and in which appointment the owner of the property taken, and for the loss of which the constitution guarantees just compensation, has no voice, and particularly where there is no remedy given, by [363]*363appeal or otherwise, to have the award of the commissioners reviewed.
In this connection it is worthy of note that by preceding section 117 of the same act (Laws second session 14th Leg., 145; R. S., art. 465) for the assessment of damages occasioned from the destruction by public authority of private property, to prevent the spread of a conflagration, the claimant has the right to appoint one of the commissioners, the city council a second, and those two, thus selected, a third. A similar mode has long been established by our statute for the selection of the ordinary commission of arbitration. Hart. Dig., arts. 10-12; R. S., arts. 43-50.
Although the interest of the individual members of the corporation might he so remote as not to disqualify them to act when properly appointed, yet their selection should be made by such mode as would reasonably be fair and impartial alike to both parties. Neither alone should have this exclusive right.
Those provisions in the constitution which relate more directly to the protection of the inalienable rights of life, liberty and property, should he upheld with a strong hand, and although we in any case reluctantly declare an act of the legislature unconstitutional, yet as the courts are the last resort for the legal protection of the just rights of the citizen, and as we believe that the section of the statute under consideration does not afford that protection, we feel constrained to declare it unconstitutional.
Judgment reversed and cause remanded.
Reversed and remanded.
[Opinion delivered May 18, 1880.]