Miller v. Washington Co. "It shall be the duty of the district attorneys to co-operate and assist upon the request or direction of the attorney-general for the State in the bringing, prosecution, defense, preparation, and trial of all cases in the circuit and chancery courts in which the attorney-general of the State is now or may hereafter be required to appear for the protection of the State or the public interest." The first section above quoted has reference only to ap peals in cases where an application has been made to open, change, or close a road to the commissioner of the district through which the road runs, or is asked to be located by any person or persons considering themselves aggrieved by the action of the jury of view appointed to condemn and assess the damages of the landowner or landowners whose lands are to be taken. It has no reference to suits or actions of the nature brought by the Washington County Good Roads Commission against the chairman and clerk of the county court of Washington county to compel them to sign road bonds to be issued by the county. It was held in the case of the State v. Jesse Adler et al., 48 Tenn. (1 Heisk.), 547, that section 5768 of Shannon's Code referred alone to criminal prosecutions. We know of no statute, and our attention has not been called to any, which makes it the duty of either the district attorney-general or the attorney-general for the State to institute and prosecute an action, such as the one brought by the road commission of Washington county, or that prohibits such a commission from employing coun 143 Tenn.-32 Miller v. Washington Co. sel to represent it in litigation that may arise out of the performance of its duties and the execution of its powers. We, therefore, hold that said commission was clothed with power and authority to employ the complainants to represent it in said mandamus action, and, as such, is liable to the complainants for the reasonable value of their services. The case of State v. True, 116 Tenn., 294, 95 S. W., 1028, which is relied on by counsel for the defendants to support their contention that the road commission was not clothed with power to employ counsel and bring said suit, is not applicable. In that case it was held that neither the chairman of the quarterly court, or the quarterly court itself, was clothed with power to bring suit to prevent a misappropriation of the public school funds, in the hands of the trustee of the county, because such school funds were not the property of the county, and its authorized agents had no control of them; but the power to bring such a suit was vested alone by statute in the hands of the State superintendentent of public instruction. It is next insisted that the chancellor erred in disallowing the motion of the defendants to have said cause transferred to the circuit court of the county for trial before a jury, as provided by the terms of chapter 90 of the Public Acts of 1919. By the first section of this act, sections 4465, 4466, 4467, 4468, 4469, and 4470 of the Code of 1858, relating to jury trials in chancery court, are repealed. By section 2 of said act it is provided as follows. Miller v. Washington Co. "That every party, hereafter suing in the chancery court upon a cause of action of which that court has juris-diction by virtue of an act passed March 23, 1877, and approved March 26, 1877, being chapter 97 of the Acts of Tennessee of 1877, entitled 'An act to increase the jurisdiction of the chancery court,' or by virtue of any admendment thereof, shall be conclusively presumed to have waived the right to demand a trial by jury by not having elected to sue at law, and that every defendant to every such suit shall likewise be conclusively presumed to have waived the right to a trial by jury unless a jury shall be demanded in the first pleading filed by him making or ten, dering an issue of fact." Section 3 provides: "That whenever any defendant shall have demanded a trial by jury in the chancery court in any cause of which that court shall have jurisdiction by virtue of said act, or by virtue of any admendment thereof, as provided in section 2 of this act, the chancellor, by an order made either in term time or at chambers, shall transfer the cause to the circuit court of the county in which it shall be pending, and the clerk and master shall immediately deliver all papers in the cause, together with a certified copy of the order of transfer, to the clerk of the circuit court of such county, who shall immediately file the same and docket the cause in said circuit court, where it shall be tried before the court and a jury. Provided, that no provision of this act shall apply to ejectment suits, or suits in the nature of ejectment, to recover land." The chancellor was of the opinion that the present ac Miller v. Washington Co. tion was not one of which the court acquired jurisdiction by virtue of the act of 1877, but that it was a cause falling within the inherent equitable jurisdiction of said court, and therefore a trial by jury was not an absolute right which the defendants had, in view of the repeal of the sections of the Code above referred to, but was a matter within the discretion of the court. This holding was based upon the theory that the suit was one against the trustees of a trust fund, and sought to have a sufficiency of said fund in the hands of the trustees appropriated to the satisfaction of their claim, and that the chancery court has exclusive equitable jurisdiction to deal with such a fund. The sections of the Code repealed by chapter 90 of the Acts of 1919 were predicated on chapter 122 of the Acts of 1845-46, granting to either party to a suit in chancery, upon application, a jury to try and determine any material fact in dispute. The constitutional provision that "the right of trial by jury shall remain inviolate" (article 1, section 6) has no reference to suits brought in the chancery court, but refers alone to actions triable at common law. Neely v. State, 4 Baxt., 180; McGinnis v. State, 9 Humph., 53, 49 Am. Dec., 697; Goddard v. State, 2 Yerg., 99; Jackson v. Nimmo, 3 Lea, 613. It was held by this court in the case of Allen v. Saulpaw, 6 Lea, 477, that before the passage of the act of 1845-46, the granting of a jury, or the ordering of the submission of facts to a jury, was largely a matter of discretion with Miller v. Washington Co. the chancellor; but after the passage of the act of 1845-46, it became the right of either party to demand a jury to try and determine any issue of fact involved in any case pending in the chancery courts of the State, and the finding of the jury in the premises was given the same force and effect as at law. Since the repeal of the sections of the Code embodying the provisions of the act of 1845-46, by chapter 90 of the Acts of 1919, neither party has an absolute right to a trial by jury in suits of which the chancery court had jurisdictfon prior to the passage of chapter 97 of the Acts of 1877, but the granting of a jury, or the ordering of a submission of the facts to a jury, is again left discretionary with the chancellor. By the act of 1877, the jurisdiction of the chancery court was increased so as to give it concurrent jurisdiction with the circuit court of all civil actions, except for injuries to persons, property, or character involving unliquidated damages, and in these cases, by the terms of chapter 90 of the Acts of 1919, the party who brings his suit in the chancery court is conclusively presumed to have waived the right to demand a trial by jury, not having elected to sue at law, and the defendant to such suit shall likewise be conclusively presumed to have waived the right to a trial by jury, unless a jury shall be demanded in the first pleading filed by him making or tendering an issue of fact. Section 3 of the act provides that if the defendant demands a jury in the first pleading filed by him making or tendering an issue of fact, the chancellor, by an order |