State v. Norton

• Decision Date: 03 July 1934
• Citation: 64 N.D. 675,255 N.W. 787
• Parties: STATE v. NORTON.
• Court: North Dakota Supreme Court

64 N.D. 675

255 N.W. 787

STATE

v.NORTON.

Supreme Court of North Dakota.

Cr. 114.

June 9, 1934.

Rehearing Denied July 3, 1934.

On Petition for Rehearing.

Syllabus by the Court.

1. Repeal of article 20 of the State Constitution does not in itself work a repeal of the law defining “engaging in the liquor traffic” and prescribing penalties therefor.

2. The repeal of the Eighteenth Amendment of the Constitution of the United States does not affect the state legislation providing against engaging in the liquor traffic.

3. By virtue of the provisions of chapter 81 of the Session Laws of 1921, being section 814 of the Supplement 1925, women are eligible to jury duty and service. Such statute does not violate the provisions of section 7 of the State Constitution which provides:

“The right of trial by jury shall be secured to all, and remain inviolate; but a jury in civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law.”

4. Said section 814 of the Supplement 1925, does not violate the provisions of the Fourteenth Amendment of the United States Constitution, which says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. * * *”

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Ed Norton was convicted of engaging in liquor traffic, and he appeals.

Affirmed.

Fredricks & Fredricks, of Jamestown, for appellant.

P. O. Sathre, Atty. Gen., and Russell D. Chase, State's Atty., of Jamestown, for the State.

BURR, Chief Justice.

The defendant was convicted of the crime of engaging in the liquor traffic in that he “wilfully and unlawfully did sell, deliver, transport, furnish and possess intoxicating liquor then and there fit and intended for beverage purposes and containing more than five per cent. of alcohol by volume.”

The specifications of error are in two general classes-one class dealing with the whole subject of the public policy of this State regarding intoxicating liquors; and the other with the constitutional qualifications of jurors.

[1] Defendant says that, because of the repeal of article 20 (section 217) of the Constitution of this state, the repeal of the Eighteenth Amendment of the Federal Constitution, the effect of this latter repeal upon the Volstead Act (27 USCA § 1 et seq.), the enactment of the initiated measure known as the “beer bill,” and the necessary implications which accompany such bill, “all conflicting statutory provisions with respect to intoxicating liquor are impliedly and expressly repealed.”

That the elimination of article 20 (section 217) from the State Constitution did not, in itself, repeal the legislative enactments “prohibiting the importation, manufacture, sale or possession of intoxicating liquors as a beverage” was determined by this court in Ex parte Aipperspach, 63 N. D. 358, 248 N. W. 488.

The defendant realizes the import of this decision, but very earnestly urges that the principles involved therein be reviewed and the decision overruled. The defendant urges that the statutes leveled against the liquor traffic (Comp. Laws Supp. 1925, § 10145b1 et seq., as amended by Laws 1931, c. 173) were not enacted because of the deliberate policy and purpose of the Legislature with reference to the subjects involved, but were rather the response of the Legislature to the will of the people as expressed in article 20 (section 217), that there is nothing to indicate such statutes would have been enacted by the Legislature were it not for the moral compulsion of article 20 (section 217), and that a review of the history of state policy relative to intoxicating liquors shows quite strongly that such laws would not have been enacted were it not because of this constitutional provision.

This whole matter was considered in the case cited. We are satisfied that such decision is correct. There is no difference in principle between the points argued in such case and the ones cited here, and therefore such decision is reaffirmed.

[2] The effect of the repeal of the Eighteenth Amendment of the Constitution of the United States was before the court in State v. Ligaarden, 59 N. D. 475, 230 N. W. 729, 70 A. L. R. 126, and “the right of the state to pass a law controlling the liquor traffic” independent of the Eighteenth Amendment in State v. Severin, 58 N. D. 792, 228 N. W. 199, 201. The principles set forth in the Ligaarden and Severin Cases are controlling here. They have been re-examined and are reaffirmed.

There is no merit in the contention that the provision of the so-called “beer bill,” the initiated measure cited, prevents the prosecution of the defendant. The alcoholic content proven in this case exceeds the alcoholic content provided for in that bill, and, while it is claimed the people modified the preexisting law, such modification, so far as applicable here, is merely in the definition of beer-authorizing the sale of a beer with a greater alcoholic content than was permissible prior thereto. The beer involved in this case is shown to be of greater alcoholic content than permitted under the new beer bill. Hence there is no merit in the objection.

[3][4] The next class of objection deals with the composition of the jury.

The jury that tried the defendant consisted of nine men and three women. It is the contention of the defendant that under the constitutional provisions of this state and the provisions of the Sixth, Seventh, and Fourteenth Amendments of the Federal Constitution, women are not eligible to jury duty.

The Fourteenth Amendment of the Federal Constitution says, among other things, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law. * * *” Appellant urges he has a right to be tried by a constitutional jury, and that the denial of this right by legislative action of this state is a violation of the provision quoted from the Fourteenth Amendment.

The principle involved is determined by the interpretation of the state constitutional provisions, and is fully answered therein.

Section 7 of article 1 of the State Constitution, being a portion of the Declaration of Rights, says: “The right of trial by jury shall be secured to all, and remain inviolate; but a jury in civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law.”

Section 24 of this article 1 says this and certain other declarations are “excepted out of the general powers of government and shall forever remain inviolate.”

In Barry v. Truax, etc., 13 N. D. 131, 99 N. W. 769, 65 L. R. A. 762, 112 Am. St. Rep. 662, 3 Ann. Cas. 191, the term “the right of trial by jury” as used in section 7 of article 1 of the State Constitution is shown to include “all of the substantial elements of the trial by jury as they were known to and understood by the framers of the Constitution and the people who adopted it.” See, also, Smith v. Kunert, 17 N. D. 120, 115 N. W. 76;Power v. Williams, 53 N. D. 54, 205 N. W. 9.

These elements are number, impartiality, and unanimity. State v. Rosenberg, 155 Minn. 37, 192 N. W. 194.

In Power v. Williams, supra, we reviewed the scope of this right as it existed at the time of the adoption of the State Constitution showing that from the very beginning of territorial legislation, by the provisions of the act creating the territory the provisions of the Constitution of the United States were incorporated in the basic law of the new government,and therefore the provisions of the Sixth and Seventh Amendments of the Constitution of the United States controlled the jury question; that this required the unanimous verdict of twelve jurors; that, under the decision of the United States Supreme Court set forth in Springville City v. Thomas et al., 166 U. S. 707, 17 S. Ct. 717, 41 L. Ed. 1172, a territorial Legislature had no authority to dispense with the requirement of unanimity (see, also, American Pub. Co. v. Fisher et al., 166 U. S. 464, 17 S. Ct. 618, 41 L. Ed. 1079); and that this conception of the trial by jury is the one which the Constitutional Convention of this state had in mind when section 7 of the State Constitution was drafted. We therefore held that the Legislature could not, without a change in the Constitution, vary the unanimity feature of trial by jury. Consequently a verdict returned by five-sixths of any jury was invalid.

Appellant says that, in view of this conception of juries, the legislative enactment permitting the selection of women as jurors (chapter 81 of the Session Laws of 1921 [Comp. Laws Supp. 1925, § 814]) is invalid; that, by the provisions of the act creating the territory of Dakota and by the territorial legislation in harmony therewith, all juries in courts of law are composed of men only; that the territorial Legislature expressly required the jury list to be made up from male citizens only; that women were never eligible for jury duty under the act creating the territory, territorial legislation, or the Constitution of this state; that the Legislature had no more power to extend the range of selection than it had to abrogate the unanimity feature, and, if it attempts to do so, it violates the Fourteenth Amendment of the Federal Constitution; and that, before women are eligible for jury duty in this state, there must be a change in the State Constitution.

This precise question came before the United States Circuit Court of Appeals, Ninth Circuit, in Tynan v. United States, 297 F. 177, where the territory of Alaska in 1923 had extended the range of jury service to women. The court held such law did not violate the organic law of Alaska providing that trial by jury shall remain inviolate and that jurors shall be male citizens, nor the provision of the Federal Constitution giving to the accused the right to a trial by an impartial...