People ex rel. Denny v. Traeger

• Decision Date: 08 August 1939
• Docket Number: No. 25310.,25310.
• Citation: 22 N.E.2d 679,372 Ill. 11
• Parties: PEOPLE ex rel. DENNY v. TRAEGER et al.
• Court: Illinois Supreme Court

372 Ill. 11

22 N.E.2d 679

PEOPLE ex rel. DENNY

v.TRAEGER et al.

No. 25310.

Supreme Court of Illinois.

Aug. 8, 1939.

Original mandamus proceeding by the People, on the relation of Clara L. Denny, against John E. Traeger, Sr., and others, to test the constitutionality of statute making women eligible for jury duty.

Writ awarded.Walter F. Dodd, Martha E. Cardwell, Grace H. Harte, and Jean Smith Evans, all of Chicago, for petitioner.

Thomas J. Courtney, State's Atty., of Chicago (Jacob Shamberg, of Chicago, of counsel), for respondents.

MURPHY, Justice.

This is an original petition for a writ of mandamus, filed on leave of this court by the People upon the relation of Clara L. Denny, a resident, taxpayer and elector of Cook county, against the jury commissioners thereof, to test the constitutionality of an act of the General Assembly amending section 2 of the Jury Commissioners' Act (Ill.Rev.Stat.1937, c. 78, § 25, Smith-Hurd Stats. c. 78, § 25), making women eligible for jury duty. This amended act applies only to counties having jury commissioners and did not become effective until July 1, 1939. A like amendment of section 1 of an act entitled ‘An Act concerning jurors' in effect July 1, 1939 (Smith-Hurd Stats. c. 78, § 1), requires that county boards of counties not having jury commissioners include women in jury lists. Respondents admit that in the revision and amendment of the jury list for use on and after July 1, 1939, they are omitting therefrom women electors, who possess the necessary legal qualifications for jury duty, and base their refusal upon the alleged invalidity of the amended statute. They contend that section 5 of article 2 of the constitution, Shith-Hurd Stats., prohibits the General Assembly from making women eligible for jury service and, further, that the amended act violates the constitutional right of trial by jury. It is not urged that the enactment in question would deny any citizen the right to have his case tried by a jury, where he was entitled to such previous to the amendment.

To answer the question presented, it is necessary to determine what are the essential elements of a trial by jury within the meaning of the constitutional provision. The ordinance of 1787 provided by article 2 of section 14 that the inhabitants of the Northwest Territory should always be entitled to the benefits of trial by jury and that ‘no man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land.’ The constitution of 1818, section 6 of article 8, provided, ‘that the right of the trial by jury shall remain inviolate.’ In the constitution of 1848, section 6 of article 13 was: ‘The right of trial by jury shall remain inviolate,’ etc., and the constitution of 1870 guaranteed it in the following language: ‘The right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace, by a jury of less than twelve men, may be authorized by law.’ This court has held that each successive constitution guaranteed the same right. George v. People, 167 Ill. 447, 47 N.E. 741;Sinopoli v. Chicago Railways Co., 316 Ill. 609, 147 N.E. 487. None of the constitutions defined the essential elements of the right of a trial by jury. The words ‘as heretofore enjoyed,’ as used in the constitution of 1870, have been held to refer to a right of a trial by jury under the common law of England and under the constitutions of 1818 and 1848. People v. Kelly, 347 Ill. 221, 179 N.E. 898, 80 A.L.R. 890;People v. Bruner, 343 Ill. 146, 175 N.E. 400.

None of the charters of liberty in which the right of trial by jury has been guaranteed contains any reference to the qualifications of jurors. Through the centuries the qualitative tests making persons eligible for jury service have not remained the same. In the earliest periods, jurors found their verdicts upon their own knowledge of the facts and they were selected from the villa or place where the offense was committed or the dispute arose. Forsyth, History of Trial by Jury. Later, by 24 Geo. 11c, 18, it was required that jurors be drawn from the body of the county. The early common law required that jurors be freeholders and, during certain periods of time, were required to meet certain standards of personal property ownership and tax payments. Until within recent times woman was not thought to be on a parity with man and it was considered that she did not possess those qualitative attributes that made her capable of exercising the right of suffrage or of rendering jury service. She was excluded from jury service on the false theory of economic, sociological and legalistic inferiority and not by any positive statement found in any of the constitutional provisions guaranteeing the right of trial by jury.

The right of trial by jury has been jealously guarded by the courts and there are many decisions in this and other States and in the Federal courts defining the essential elements of a jury trial as guaranteed by constitutional provisions. In Sinopoli v. Chicago Railways Co., supra, this court said [316 Ill. 609, 147 N.E. 491], ‘The essential thing in the right of trial by jury is the right to have the facts in controversy determined under the direction and superintendence of a judge by twelve impartial jurors having the qualifications and selected in the manner required by law, whose verdict must be unanimous and shall be conclusive, subject to the right of the judge to set it aside, if in his opinion it is against the law or the evidence and to grant a new trial.’ In People v. Kelly, supra, we said that the essential elements of a trial by jury were (1) twelve (2) impartial (3) qualified jurors who should (4) unanimously decide the facts in controversy (5) under the direction and superintendence of a judge. See Liska v. Chicago Railways Co., 318 Ill. 570, 149 N.E. 469;Lommen v. Minneapolis, etc., Co., 65 Minn. 196, 68 N.W. 53,33 L.R.A. 437, 60 Am.St.Rep. 450;State v. Norton, 64 N.D. 675, 255 N.W. 787.

It is settled that no one set of qualifications of jurors was engrafter upon the law by any of the constitutional guarantees. Juror qualifications are a matter of legislative control and may differ from those qualifications known to the common law, as is demonstrated in the following cases: In Re Mana, 178 Cal. 213, 172 P. 986, L.R.A.1918E, 771, it was held that a constitutional provision, substantially to the effect that the right of a trial by jury shall be secured to all and remain inviolate, does not prevent the legislature from authorizing women jurors. The court said: ‘Qualifications of the jury is a matter subject to legislative control, and that, even though such qualifications may differ from those at common law, such legislation is nevertheless a valid exercise of legislative power.’ In People v. Barltz, 212 Mich. 580, 180 N.W. 423, 426, 12 A.L.R. 520, where the court considered the service of women as jurors it was said: ‘It seems to be the settled law in all the states, so far as we have been able upon examination to discover, that the qualifications of jurors are matters of legislative control, even though the qualifications laid down by the Legislature differ from those at the common law. * * * So long as the essential requisites of trial by jury are preserved, it is competent for the Legislature to prescribe the necessary qualifications of jurors, and additional qualifications may from time to time be imposed by the Legislature.’ In United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 185, 81 L.Ed. 78, as applied to the sixth amendment of the Federal constitution, U.S.C.A., the court said: ‘The Sixth Amendment does not preclude legislation making women qualified to serve as jurors in criminal prosecutions although that was not permitted at common law.’

In Illinois, the General Assembly has the right to prescribe the qualifications of jurors. Kerwin v. People, 96 Ill....