Harland v. Territory

• Decision Date: 03 February 1887
• Citation: 3 Wash.Terr. 131,13 P. 453
• Parties: HARLAND v. TERRITORY.
• Court: Washington Supreme Court

13 P. 453

3 Wash.Terr. 131

HARLAND v. TERRITORY.

Supreme Court of Territory of Washington

February 3, 1887

TURNER, J.

A question arises in this case which was before the court at its July term, 1884, namely, the question whether married women, living with their husbands, are competent grand jurors in this territory. The question was then decided in the affirmative, but by a divided court. Rosencrantz v. Territory, 2 Wash. T. 267, 5 P. 305. Since that decision there has been a change in the membership of the court, and a majority of the quorum sitting in this case finds itself unable to agree with the views expressed or the conclusions announced in the first decision. Two members of the court, however, yet adhere to that decision. This circumstance gives ground for hesitation in overruling the same; but there are several reasons which the present majority think justify them in giving effect to their views and which will be likely to prevent embarrassment therefrom in the future administration of the law: (1) We think the first opinion reached did not meet with the concurrence of the bar of the territory. It established no rule of property and its principles have not been long applied. (2) A new question, not argued or passed on in the first case, arises in this case, and is decisive of it. (3) Both of the judges who adhere to the first opinion, after a service of long duration, in which they have honorably illumined our judicial history by great learning and ability, and by the purity of their lives and the uprightness of their official conduct are about to retire from office by reason of the expiration of their terms. It is proper for me to add here that the membership of the court may be still further changed in the near future, and,-speaking of myself alone,-without such great detriment to the public interest.

I pass then, without further preliminary remarks, to a consideration of the reasons which, in my judgment, properly govern the question. I shall not reiterate the arguments embraced in the dissenting opinion read by me in the first case. Although presented most imperfectly, by reason of the haste in which that opinion was prepared, the views there expressed yet seem conclusive to my mind against the opinion then reached by the majority of the court. There are, however, some additional thoughts pertinent to the reasoning of the majority in the first case to which I will advert before going on with the new question involved.

Section 2078 of the Code provides that "all qualified electors shall be competent to serve as petit jurors, and all qualified electors and householders shall be competent to serve as grand jurors." At the session of 1883 the legislature then passed an act entitled "An act to amend section 3050, c. 238, of the Code of Washington Territory," which act, if valid, makes females of like age with males qualified electors. The claim is that females are competent jurors by reason of these two statutes. From the earliest period in the history of the common law, jurors grand and petit, have been composed of men. The language of the venire facias was that they be liber et legalis homo; and according to Blackstone, "under the word homo, though a name common to both sexes the female, however is excluded, propter defectum sexus."

When legislatures have prescribed the qualification of jurors, the requirement that they should be males has always been implied. Section 2078 of the Code carries with it that implication, and undoubtedly that which is implied would have been clearly expressed if it had ever occurred to the members that a subsequent legislature would confer the elective franchise on females. Whatever may be thought of the propriety of making females voters, there is but one opinion among the great mass of the people, male and female, concerning the imposition on the latter of jury duty, and that opinion is firmly and unalterably against such imposition. The legislature which passed the suffrage act, coming from the people and representing their sentiments, cannot be supposed to have intended the accomplishment of that which the people so universally disapprove, and it is fair to suppose that they would have expressly limited the effect of their act if they had foreseen the lengths to which it would be attempted to carry it. However this may be, the later act dealt entirely with the elective franchise, and, as I have heretofore shown, it could not lawfully have had in contemplation any other object. Neither of the legislatures then, responsible for the respective acts, the joint operation of which is held to make females jurors, having contemplated such a thing, it is manifest that that result can be arrived at only by a process of judicial construction which severely follows the letter of the law and sacrifices the spirit. Thus that is made to be law which was never in the mind of any except the most visionary enthusiast.

Well may it be exclaimed, in the face of such judicial exposition: "The letter killeth, but the spirit giveth life." The body of our law may be likened to an ocean, both because of its extent and its characteristics. Every atom is in juxtaposition with its neighbor, the whole pliable and yielding, and yet forceful; and, notwithstanding its immense force, subject to influence and modification by the slightest addition. Every addition which may be made to the mass forces back the several parts with which it comes in contact as far as it may and ought, while the whole confines the part to its just and proper limits. No law can be considered alone and by itself. Every law carries with it impliedly, in spite of its terms, limitations and extensions which the great mass of the law forces on to it and into it. These limitations are infinite and as extensive as the law itself. An illustration in point is the rule of the common law that a child under seven years of age is incapable of any crime.

Mr. Bishop, the most philosophical of all our law writers, thus speaks of the limitation just mentioned: "Therefore, when a statute creates a crime, its terms, however general, are no more applied to such a child than are similar terms of the common law. And this sort of interpretation extends through all our laws, the written and the unwritten alike. The books contain cases in which counsel and the courts forget it; but none in which judicial persons, with their eyes open and duly warned, deliberately reject it. We sometimes read in judicial opinions that those pronouncing them deem it due to the legislature to follow its directions, and not to make exceptions where it has made none; but this sort of language should not be taken as a denial of what every person familiar with our reports knows, namely, that no judge ever deliberately undertook to administer a statute without admitting those exceptions to it which are recognized in the other parts of the legal system. Nor did any legislative body ever proceed on the idea that its enactments are to be put in force by courts so ignorant of legal affairs as to deem them meant for independent rules, to be limited by no others, and to override all laws antagonistic to their general words; for legislatures and courts alike recognize the fact, which common sense teaches to every thoughtful person, that it is neither possible nor desirable, in any system of laws, to attach to each particular law every qualification embraced in every other. So voluminous would the laws thus become, and so often would conflicts be found in them, in spite of every legislative caution, and so difficult would it be to explore their immense masses, that their usefulness would be indefinitely diminished." Bish. St. Crimes, §§ 117, 117 a.

In view of this forcible and conclusive exposition of the relations to each other of laws, old and new, it needs only to remember the conditions surrounding the subject at the time section 2078 was enacted, to gain the assent of the mind to the proposition that the implication must have attached to that law that jurors, both grand and petit, should be qualified electors who are males.

Ought this limitation to be destroyed by implication derived from a legislative act which confessedly deals with another subject? I think not. The change is so marked, and the labor and responsibility which it imposes so onerous and burdensome, and so utterly unsuited to the physical constitution of females, that we ought not to depart from the old order without the most indubitable evidence that the legislature so intended. We are not without high authority on this precise question. The supreme court of Massachusetts, in a case where the statute under which a female claimed the right to assume the office of an attorney at law was broad enough to sustain her claim, denied her the right on the precise ground here put. Robinson's Case, 131 Mass. 377. In discussing that case the court says: "The intention of the legislature in enacting a particular statute is not to be ascertained by interpreting the statute itself alone, and according to the mere literal meaning of its words. Every statute must be construed in connection with the whole system of which it forms a part, and in the light of the common law, and of the previous statutes upon the same subject; and the legislature is not to be lightly presumed to have intended to reverse the policy of its predecessors, or to introduce a fundamental change in long-established principles of law."

In a case arising in Illinois, the supreme court of that state made a similar decision, upon similar reasoning, and the action of that court was affirmed, on appeal, by the supreme court of the United States. Bradwell v. Illinois, 16 Wall 130. The language of Judge BRADLEY in the latter case is worth quoting at length: ...