In re Opinion of the Justices

• Decision Date: 14 March 1921
• Citation: 237 Mass. 591,130 N.E. 685
• Parties: In re OPINION OF THE JUSTICES. In re HOUSE BILL NO. 1477.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 591

130 N.E. 685

In re OPINION OF THE JUSTICES.

In re HOUSE BILL NO. 1477.

Supreme Judicial Court of Massachusetts.

March 14, 1921.

Opinion of the Justices of the Supreme Judicial Court relative to the constitutional power of the General Court to enact a bill rendering women liable to jury duty; two questions being submitted by the House of Representatives. Questions answered.

The request of the House of Representatives for the opinion of the Justices here follows:

March 14, 1921.

Whereas, there is pending before the General Court a certain bill accompanying the petition of Hon. Andrew J. Peters, mayor of Boston, to amend section 1 of chapter 234 of the General Laws, a copy of said bill and petition being annexed hereto; and

Whereas, there exists grave question and uncertainty as to the constitutional power of the General Court to enact said bill: Therefore be it.

Ordered, that the House of Representatives respectfully requests the opinion of the Honorable Justices of the Supreme Judicial Court upon the following important questions of law:

First, Under the existing Constitution and laws of the commonwealth and the Constitution of the United States, are women liable to jury duty?

Second. If the first question be answered in the negative, has the General Court constitutional power to enact legislation so that women may be made liable to jury duty?

James W. Kimball, Clerk.

A true copy. Attest: James W. Kimball, Clerk of the House of Representatives.

The pending bill her follows:

An Act making women, with certain exceptions, liable for service as jurors.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 1. Section one of chapter two hundred and thirty-four of the General Laws is hereby amended by inserting in the first line thereof, after the word ‘person,’ the words, of either sex, and by adding at the end of the third line thereof, the words: Women trained nurses, women assistants in hospitals, women with one or more children under the age of ten years and such other persons being women as are included under the following exemptions,-so that said section shall read as follows: Section 1. A person of either sex qualified to vote for representatives to the general court shall be liable to serve as a juror, except that the following persons shall be exempt:

Women trained nurses, women assistants in hospitals, women with one or more children under the age of ten years and such other persons being women as are included under the following exemptions:

The governor, lieutenant governor, members of the council; state secretary; members and officers of the senate and house of representatives during a session of the general court; judges and justices of a court; county and associate commissioners; clerks of courts and assistant clerks and all regularly appointed officers of the courts of the United States and of the commonwealth; registers of probate and insolvency; registers of deeds; sheriffs and their deputies; constables; marshals of the United States and their deputies, and all other officers of the United States; attorneys at law; settled ministers of the gospel; officers of colleges; preceptors and teachers of incorporated academies; registered practising physicians and surgeons; cashiers of incorporated banks; constant ferry-men; persons over sixty-five years of age; members of the volunteer militia; members of the ancient and honorable artillery company; superintendents, officers and assistants employed in or about a state hospital, insane hospital, jail, house of correction, state industrial school or state prison; keepers of lighthouses; conductors and engine drivers of railroad trains; teachers in public schools; enginemen and members of the fire department of Boston, and of other cities and towns in which such exemption has been made by vote of the city council or the inhabitants of the town, respectively.

Section 2. This act shall take effect upon its passage.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts.

The Justices of the Supreme Judicial Court, having considered the questions set forth in the order of March 14, 1921, copy whereof is hereto annexed, respectfully submit these answers:

These questions are considered strictly with reference to the proposed bill, copy of which accompanies the order.

The first question is interpreted to mean, whether by the existing laws, under the present provisions of the Constitution of the commonwealth and of the Nineteenth Amendment to the Constitution of the United States, women may be required and compelled to serve as jurors.

It is plain that prior to the adoption of the Nineteenth Amendment to the Constitution of the United States, women could not serve as jurors under our Constitution and laws. The law at the time of the adoption of the Constitution, the frame and purport of that instrument, and the universal understanding and unbroken practical construction of its provisions from that time up to 1920 are inconsistent with any other view. See Opinion of Justices, 107 Mass. 604;Id., 165 Mass. 599, 43 N. E. 927,32 L. R. A. 350. Women never have served as jurors within the commonwealth except in the rare and restricted instances of a jury of matrons. ‘Trial by jury’ both at common law and in American constitutions has been held to mean ‘a trial by a jury of twelve men.’ Capital Traction Co. v. Hof, 174 U. S. 1, 13, 19 Sup. Ct. 580 (43 L. Ed. 873).

The words of G. L. c. 234, § 1, to the effect that ‘a person qualified to vote for representatives to the general court shall be liable to serve as a juror,’ are broad enough as matter of mere verbal analysis, in connection with G. L. c. 51, § 1, conferring such right to vote upon women, to include women as well as men. Those words, however, like the words of every statute, are not to be interpreted in their simple literal meaning, but in connection with the history of the times and the entire system of which the statute in question forms a part, in the light of the Constitution, of the common law and of previous legislation upon the same subject. The provisions of law prescribing the qualifications of those subject to jury service have been in almost the same essential words since the adoption of the Constitution. No sound ground for the contention that women could be jurors existed until after the adoption of the Nineteenth Amendment to the federal Constitution. It cannot be thought that the General Court by re-enacting in G. L. c. 234, § 1, the description of those liable to be drawn as jurors, in words previously used and without change, intended to include women.

[2] This conclusion is confirmed by the facts that the statute contains no reference to exemption of the large numbers of women who manifestly ought not to be required to serve as jurors, that no provision is made for the convenience of women in court houses, some of which are already overcrowded and unfit for their accommodation, and that the jury of ‘men’ is continued in G. L. c. 123, § 57, as applicable to the cases there described. It is a familiar rule of statutory construction that the re-enactment of an earlier statute does not affect its meaning or enlarge its scope in the absence of definite indication of a legislative purpose to that end.

The decisions of Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664, Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676, and Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567, were made under conditions different from those here presented. The court in those cases were considering the freedom, citizenship, civil rights and voting privileges guaranteed to the colored race by the then recent amendments to the Constitution of the United States. Those decisions recognize the powers of the states to prescribe the qualifications of jurors, and in so doing to make discriminations, and to ‘confine the selection to males, to freeholders, to citizens, to persons within certain ages or to persons having educational qualifications.'¹

The first question is answered in the negative.

Article 19 of the Amendments to United States Constitution, declared adopted by certificate of the Secretary of State, on August 26, 1920, is in these words:

‘The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.’

The adoption of this Amendment, by its inherent force, struck from the Constitution of this commonwealth the word ‘male’ wherever it occurred as a limitation upon the right of the citizen to vote. Guinn v. United States, 238 U. S. 347, 362-363, 35 Sup. Ct. 926, 59 L. Ed. 1340, L. R. A. 1916A, 1124. It follows that, under part 2, c. 1, § 2, art. 2, chapter 1, § 3, art. 4, and chapter 2, § 1, art. 3, of the Constitution of this commonwealth, as amended by articles 3, 17, 20, 28, 31, and 32 of the amendments, ‘every citizen of twenty-one years of age and upwards,’ possessing other requisite qualifications, has a right to vote. Clearly women are included among the...