United States v. Merchants' & Miners' Transp. Co.

• Decision Date: 08 March 1911
• Docket Number: 379,381.,380
• Parties: UNITED STATES v. MERCHANTS' & MINERS' TRANSP. CO. et al.
• Court: U.S. District Court — Southern District of Georgia

187 F. 355

UNITED STATES v. MERCHANTS' & MINERS' TRANSP. CO. et al.

Nos. 379, 380, 381.

United States Circuit Court, S.D. Georgia, Eastern Division.

March 8, 1911

The plea in abatement to the indictment against the Merchants' & Miners' Transportation Company is as follows:

And now comes the above-named defendant corporation, the Merchants' & Miners' Transportation Company, and pleads in abatement to the indictment in the above-stated cause, filed in the above-mentioned court, and says that the grand jury which found the said indictment was illegally constituted and was not a lawful body, in this: The act of Congress approved June 30, 1879, and governing in this matter, requires that the box, from which the names of grand jurors in said court must be drawn, shall contain not less than three hundred persons, and that these names shall have been placed therein by the clerk of the said court and the commissioner appointed by the judge thereof, which commissioner shall be a citizen of good standing residing in the district in which the court is held and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, and that the said clerk and the said commissioner shall each place one name in the said box alternately without reference to party affiliations until the whole number required shall be placed therein. That on the 30th day of April, 1910, the Honorable Emory Speer, United States District Judge, and presiding in said Circuit Court, passed an order in said Circuit Court touching the jury box for said court and its revision, of which the following is a copy:

'In re the Jury Box.

'Order Appointing A. S. Anderson, Esquire, as Jury

Commissioner and for Revision of Jury List.

'It appearing to the court that the jury box is in need of revision, it is ordered by the court that A. S. Anderson Esquire, be and he is hereby appointed jury commissioner, and that he, together with the clerk of this court, proceed, as soon as may be practicable, conformably to law, to revise the jury box of said court, placing therein not less than five hundred and fifty (550) names of persons eligible to jury service from said Eastern division of said Southern district of Georgia in the following proportions, respectively, from the several counties of the district:

Chatham county ..... 75 Glynn county ..... 37

Effingham county ... 37 Appling county ... 19

Screven county ..... 38 Liberty county ... 19

Jenkins county ..... 37 Bryan county ..... 18

Emanuel county ..... 59 McIntosh county .. 19

Bulloch county ..... 60 Camden county .... 18

Montgomery county .. 37 Wayne county ..... 19

Tattnall county .... 38

'In open court, this 30th day of April, 1910.

'Emory Speer, United States Judge.'

That the said clerk and the said A. S. Anderson proceeded in accordance with the said order just quoted, and because of the said order, and placed in the said jury box exactly five hundred and fifty names, distributing them as directed by the said order, and placing in the jury box the number of persons, residents of the counties mentioned, as directed by the said order, and no more and no less; that is to say, the said clerk and the other jury commissioner placed in the said box, under and because of the said order, the names of seventy-five jurors from Chatham county, the names of thirty-seven from Effingham county (naming each county and number as above), making five hundred and fifty names, and they placed only these names, no more and no less, in the said jury box. That all of the jurors finding the above indictment against this defendant were taken from the said jury box so made up, and the said clerk and the other jury commissioner, in making up the said box and in putting the names therein, felt bound by the said order and followed the same.

This defendant says that, under the law, the discretion as to the numbers and residence of jurors to be placed in the said box was with the said clerk and the other jury commissioner except that the law required that they place in the box the names of not less than three hundred persons, whereas the said order directed that they place therein not less than five hundred and fifty names, and in this respect the said order, and the course taken thereunder by the said two jury commissioners, made the constitution of said grand jury, and the making up of the said jury box, illegal and contrary to the statute. Defendant also says that, under the law, the discretion as to the selection of jurors resident in the said Western division, and as to the number from any county thereof to be placed in the box, was with the said clerk and the other jury commissioner, and not with the judge of the court, except that, under the act of June 30, 1879, the said judge did have the discretion to order the names of jurors to be drawn from the boxes used by the state authorities in selecting jurors in the highest courts of the state. The said judge, however, did not exercise this discretion, in that he did not direct that the names be drawn from the boxes used by the state authorities, but by the said order substituted his discretion, as to the number of names to be placed in the box and as to their manner of distribution among the counties in the said Eastern division, for the discretion put by the law in the jury commissioners, and the said judge, by the said order, so proportioned the numbers as to require that 550 names be placed in the box, and that they be distributed among the counties named as required in the said order.

Defendant further says: That, by the census of the United States taken in 1910, the said counties have the following populations, to wit: Chatham county, 79,690; Effingham county, 24,125; Screven county, 20,202; Jenkins county, 11,520; Emanuel county, 25,140; Bulloch county, 26,464; Montgomery county, 19,638; Tattnall county, 18,569; Glynn county, 15,720; Applying county, 12,308; Liberty county, 12,924; Bryan county, 6,702; McIntosh county, 6,442; Camden county, 7,690, and Wayne county, 13,069. That the distribution directed by the said judge and observed by the said jury commissioners, under his said order, was disproportioned to the populations of the said counties, and that, if the populations had been observed, Chatham county-- the county in which it is proposed to try the said cause-- would have had in the box a much larger number of names, as will appear from the populations just stated. Chatham county has more than one-fourth of the population of all the counties in the division, and yet only seventy-five names from Chatham county were put in the box, and only one resident of Chatham county was on the grand jury of twenty that found this indictment. That no county in the division, other than Chatham, possesses any advantage over Chatham in the matter of the qualification of jurors, or other competency or fitness, and Chatham county possesses over the other counties large advantages, not only as to population, but as to property and commercial importance and prestige. That Chatham county is largely a commercial county, and the jurors living in the said county would possess special qualifications for the trial of issues involved in the present cause. It is the only county in the Southern district of Georgia in which defendant has an agent.

Defendant says that for the reasons stated the grand jury box was not made up in the manner pointed out by law; that the said grand jury, which preferred the said indictment, was illegally constituted, and the said proceedings and the said indictment were and are unlawful and should be abated. Defendant says that the said order and the course taken under its mandate by the said jury commissioners deprived this defendant of its rights under the statute of the United States, and its right to the exercise of the discretion of the jury commissioners, and tend to its manifest prejudice, and that this defendant is entitled to a grand jury made up as required by the said statute, and in accordance therewith, without discrimination as to any county in the division, and without any curtailment or impairment of the discretion of the said jury commissioners, and without any direction from the court as to the persons to be selected, or the residence of said persons, or the number to be placed in the box. Of all of which rights defendant has been deprived by the said order.

Wherefore it prays that said indictment be abated and quashed, etc.

Merchants' & Miners' Transportation co.,

Per L. M. Erskine, Agent.

Daniel H. Hayne,

Adams & Adams,

Attorneys.

A further ground was added, by amendment, in which it was alleged that one of the grand jurors was a member of the board of education of the county of his residence, which disqualifies him by the state law from serving on the grand jury in the state court, and that he was therefore disqualified from serving as a grand juror in the United States court.

Alexander Akerman, Asst. U.S. Atty., and W. M. Toomer, John H. Marble, and S. H. Smith, Sp. Asst. U.S. Attys.

Samuel B. Adams, A. Pratt Adams, and Daniel Hayne, for defendant Merchants' & Miners' Transp. Co.

Alexander Hamilton and Peter W. Meldrim, for defendant Atlantic Coast Line R. Co.

Anderson, Cann & Anderson, for defendant Seaboard Air Line Ry. Co.

SPEER District Judge (orally).

I am quite sure that in directing the revision of the jury box, or boxes, by the order to which exception is taken in this plea in abatement, the court intended nothing save to distribute generally throughout the district the labor and burden of attending here, and to secure impartial and upright jurors. It will be observed that the commissioners were directed to select the jurors from...