142 N.C. 604 | N.C. | 1906
Lead Opinion
Tbe defendant regularly drawn and summoned as a juror for that term of court declined to serve, and was fined $10, and appealed. He claimed to be exempt under cb. 55, Private Laws 1868-’69, ratified 8 March, 1869, which incorporated tbe Wilmington'Steam Eire Engine Company and contains tbe provision that its “members shall, during membership, be exempt from all jury and militia duty, and
The exemptions under this and other private, acts (passed usually, as is common knowledge, upon the motion of the members from the county in which each locality lies, and without scrutiny or opposition) became so numerous as to impair, often, the supply of good jurors. The General Assembly thereupon passed Eevisal, 1957, which directs the County Commissioners to select the names of "all such persons as have paid all the taxes assessed against them for the preceding year, and are of good moral character and of sufficient intelligence. A list of the names thus selected shall be made out by the Clerk of the Board of Commissioners and shall constitute the jury-list, and shall be preserved as such.”. To this sweeping clause, Eevisal, 1980, adds the exemptions to be .allowed, which are much fewer than those formerly allowed, even in the general law,' and contains this item: “No active member of a fire company shall be required to serve as a juror.” Wilmington, in 1897, adopted a paid fire department, and the defendant’s company ceased its active service. The County Commissioners having found that the defendant was liable to jury duty under Eevisal, 1957, and not exempt under Eevisal, 1980, placed his name on the jury-list.
Eevisal, 1957, is broad and. succinctly prescribes what citizens shall be liable to jury duty, subject only to the exemptions set out in Eevisal, 1980. This is a matter solely within legislative control, subject to change in the judgment of any succeeding Legislature. If the provision in the aforesaid act of 8 March, 1869, under which the defendant claims exemption from rendering jury service to his State is public in its nature, it is clearly repealed by Eevisal, 5458: “All public and general statutes not contained in this Eevisal are hereby
The defendant contends, however, that the Act of 1869 was a contract between the fire company and the State and is protected by the principles laid down in the Dartmouth College case. Whatever may be said of the correctness or incorrectness of that decision (and very much has been said) the inconveniences proved so great that this State, like most, if not all others, has since inserted in its Constitution the following provision, Art. VIII, sec. 1: “Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes and in cases where, in the judgment of the Legislature, the object of the corporations cannot be attained under general laws. All general laws and special acts, passed pursuant to this section, may he altered from time lo time or repealedThe Constitution was adopted 18 April, 1868, and if the exemption in the charter of the Wilmington Eire Company, ratified 8 March, 1869,
But, in truth, independent of that constitutional provision, exemptions from military and jury and other public duties were never at any time contracts by which one Legislature could irrevocably sell, or give away, the right of the State to command the service of its citizens for public and governmental duties. Such exemptions were adjudged to be mere privileges, revocable by subsequent Legislatures, and were so held in all the States (except in one case in Missouri) in which the contention was raised, even prior to the incorporation into their respective Constitutions of the provision above quoted from the North Carolina Constitution.
“It has been generally held that the right of exemption from jury service is not a vested right, but a mere gratuity which may be withdrawn at the pleasure of the Legislature.” 17 A. and E. Ency. (2 Ed.), 1177. Judge Cooley Const. Lim. (7 Ed.), 329 and 546, says: “The citizen has no vested right in statutory privileges and exemptions. Among these may be mentioned: exemptions from the performance of public duties upon juries, or in the militia and the like, exemptions of persons and property from assessment for the purpose of taxation, * * * exemptions from highway labor and the like. All these rest upon reasons of public policy, and the laws are changed as the varying circumstances seem to require; * * * the privilege of exemption might be recalled, without violation of any constitutional principle. The fact that a party had passed the legal age under an existing law, and performed the service demanded by it, could not protect him against further calls, when public policy or public necessity was thought to require it.”
In Rust, ex-parte, 43 Ga., 209, Lockrane, C. J., holds that a general statute providing for jury service repeals all previous exemptions not found therein, and that an exemption previously conferred in the charter of a fire company upon its members is not a contract, but a privilege, revocable by any subsequent Legislature. Though a fireman had served the five years, provided in the charter, the exemption is “not a contract, but a mere privilege, and may be revoked by the Legislature at anytime.” Beamish v. State, 65 Tenn., 532.
“The duty of serving on juries is one of the inseparable incidents of citizenship, and all' exemptions from such service (in that case for service in a fire company) are mere gratuities, revocable at the pleasure of any succeeding Leg
The sole case to be found to the contrary is In re Goodin, 67 Mo., 637, which is based upon the ground that an exemption from jury duty is a contract and protected by the decision in the Dartmouth College case. If that decision could-overbalance the uniform precedents to the contrary, it could not be authority here in view of the provision in our Constitution, above quoted, making all charters subject to repeal or amendment at the will of the Legislature. Indeed, in Railroad v. Alsbrook, 110 N. C., 145, this Court held that, independent of and prior to the adoption of that provision, the Legislature could not irrevocably grant or bargain away, even for a consideration, an exemption of property from taxation. Eor a stronger reason, the State could not permit one Legislature to confer a release of its right to call for the discharge of public duty by its citizens in the public defense, in the jury-box or elsewhere, irrevocable by a subsequent Legislature.
In State v. Womble, 112 N. C., 863, the exemption was sustained solely upon the ground that the local act conferring it was saved from repeal by see. 3873 of The Code. This, as
Affirmed.
Dissenting Opinion
dissenting: It is impossible for me to assent either to the conclusion or to the reasoning of the majority. On both points involved in the case, I entertain an opinion different from that which has been delivered by the Chief Jus-iice for the Court. In the first place, I do not think the statute under which the defendant claims exemption from jury service has been repealed by the Revisal. The rule is well settled that repeals by implication are not favored. State v. Perkins, 141 N. C., 797. The two statutes should be irreconcilable with each other before such an implication can arise, and when any fair construction will prevent a conflict between them it should be adopted. State v. Massey, 103 N. C., 348; State v. Womble, 112 N. C., 864. The Revisal, sec. 1980, simply provides that no active member of a fire . company shall be required to serve as a juror. There is no express repeal here of any clause of exemption inserted in the charter of a fire company by prior legislation, and there is no necessary repugnancy between the two provisions of the law. If there is, in what does it consist ? The exemption of active members of fire companies does not by any means imply that those who have once been active members for a sufficient length of time to entitle them to a permanent exemption shall no longer be entitled to the immunity which they have thus earned. Merely adding to the list of exemptions does not produce a conflict with a statute under which an exemption had accrued by reason of former active service for a series of years. It would not have this effect, even if the Revisal had provided that none but active members shall be exempt, as this would merely distinguish between active and honorary members of existing organizations. The use of the term “active members” implies, of course, that there are members
There is, therefore, nothing in tbe Eevisal which conflicts with tbe clause of exemption in’the charter of tbe fire company, or which manifests any purpose to repeal it, and we should lean to this view, because, as said by a Court of high authority, in a like case, tbe opposite interpretation of tbe law would disclose bad faith, and, “if possible, we should give such a construction to tbe act of tbe Legislature as will relieve tbe State from such an interpretation.” Red Rock v. Henry, 106 U. S., at p. 604. And in another case, also upon a question of like kind, it was said that we should presume an intention, on tbe part of tbe State, to keep and observe her promises consistently with good faith, for to- presume otherwise would be to impute to her an insensibility to tbe claims of morality and justice, which nothing in her history warrants. Broughton v. Pensacola, 93 H. S., 266; 26 Am. and Eng. Enc. (2 Ed.), pp. 646 and 661; Lewis’ Suth. Stat. Constr. (2 Ed.), secs. 267 and 488. Tbe mind of tbe Legislature is presumed to be consistent, and it must also be presumed that the Legislature never intends an injustice, or to
Before I can assent to the proposition that the State has repudiated a solemn promise of exemption, after having received the full consideration thereof in public services, language will be required more explicit and convincing than any the Legislature has yet used, and reasons and arguments more persuasive than any which have yet been advanced in support of such a position. The State, in my opinion, has done no such thing, and the Legislature did not intend to commit her to any such policy, but, on the contrary, it was the purpose to recognize and confirm existing exemptions.
But there is another and more serious question involved in this case, which relates to the power of the Legislature thus to destroy a vested right or to impair the obligation of its contract. In my opinion it has no such power. It is argued that the State cannot bargain away its right to require the citizen to perform jury service, such a service being essential to the very preservation of the State. The deduction from this premise is that a sovereign right of such vital importance is not the subject of contract. Let us see how this is. If I am able to demonstrate that a sovereign right much more essential to the existence of the government than that of requiring the citizen to serve as a juror has been parted with by exempting persons or corporations from its exercise, not for a limited term, but forever, and that such an exemption has been sustained as being within the legislative power, and as irrevocably binding on the State, it must be admitted
Tbe Constitution forbids tbe granting of hereditary emoluments, privileges or honors, and also perpetuities and monopolies, as being contrary to tbe genius of a free State, and such as should not be allowed. Art. I, secs. 30 and 31. But by Art. I, sec. 7, it is expressly provided that “no man or set of men are entitled to exclusive or separate emoluments or privileges from tbe community, but in consideration of public services.” It is clearly implied here that for public services rendered tbe State, a privilege may be granted in return, and there is no restriction as to its- nature or extent. A privilege is said to be a particular or peculiar benefit enjoyed by a person, company or class beyond tbe common advantages of other citizens — an exceptional or extraordinary exemption or an immunity held beyond tbe course of tbe law. And again, it is defined to be an exemption from some burden or attendance, with which certain persons are indulged, from a supposition of tbe law that their public duties or services, or tbe offices in which they are engaged, are such as require all their time and care, and that, therefore, without this indulgence those duties could not be performed to that advantage which the public good demands. Black’s Dictionary, p. 941; 1 Pin., 118. These approved definitions show clearly that the exemption here claimed is within the meaning of the word “privilege,” as used in the Constitution, which may be conferred in consideration of public services. Indeed, this Court has expressly held, in cases just like this one, that the Legislature may grant such an exemption. State v. Hogg, 6 N. C., 319; State v. Williams, 18 N. C., 372; State v. Whitford, 34 N. C., 99; State v. Womble, 112 N. C., 862. In State v. Willard, 79 N. C., 660, the very exemption granted by the charter in question was sustained as within the power of the Legislature to grant, and the only point made was as to its true construction and the extent of
In Railroad v. Alsbrook, 110 N. C., at p. 145, this Court (by Clark, J.) says: “The right of taxation is the highest prerogative of sovereignty. Its exercise is necessary to the very life and existence of the State. Its possession marks — ■ regardless of the nominal form of government — its real nature, whether republican, monarchical or aristocratic. It is the power of the purse to which the power of the sword is a mere sequence,” and I venture to add, to which all other governmental powers are practically subordinate, because upon it they are dependent for their continuance. It is, if anything, the supreme prerogative power of sovereignty, and absolutely essential to the existence of government in any form. And yet this, the highest power of the sovereign State, has been held to be the subject of contract, and any agreement based upon a sufficient consideration, such as public services rendered, by which the State exempts the citizen or a corporation from taxation, is valid and binding and is within the protection of the contract clause of the Federal Constitution. This principle was announced in a case decided otherwise by this Court, but which was reversed in the Supreme Court of the United States upon a writ of error. Railroad v. Reid, 13 Wall., 264 and 269. In that case the Court said: “If, however, the contract is plain and unambiguous, and the meaning of the parties to it can be clearly ascertained, it is the duty of the Court to give effect to it, the same as if it were a contract between private persons, without regard to its supposed injurious effects upon the public interests. It may be conceded that it were better for the interests of the State that the taxing power, which is one of the highest and most important attributes of sovereignty, should on no occasian be surrendered.. In the nature of things the necessities of the government cannot always be foreseen, and in the changes of time the ability to raise reve
As there is no subject over which it is of- greater moment for the State to preserve its power than that of taxation, and as it has been settled that the State may irrevocably part with this power in favor of a particular person or corporation, with much greater reason (a fortiori) may it exempt a citizen perpetually from jury duty for a sufficient consideration moving to the public in the way of services. This follows logically and inevitably from the other proposition and cannot be resisted as a conclusion to be legitimately drawn from it. If the highest power of sovereignty can be bargained away, that which is of a lower grade, and is dependent upon it for existence, must be equally subject to alienation, unless
I have cited copiously the cases in tbe Supreme Court of tbe United States, because sucb questions as tbe one we now have under consideration must ultimately be adjudicated there and its decisions are therefore controlling. Tbe authorities cited to sustain tbe decision of tbe Court in this case are squarely opposed to tbe doctrine as laid down by tbat supreme tribunal, and therefore should not be entitled to any weight as precedents with us, while tbe case from Missouri is directly in line with tbat doctrine and in perfect harmony with tbe decisions of tbe highest Court baying jurisdiction to finally and authoritatively settle tbe law, so far as it relates to tbe question herein, involved.
If tbe superior and sovereign power of taxation can be permanently relinquished in favor of an individual or of a corporation, why not tbe inferior and less important one under which tbe citizen may be compelled to perform jury service ? Tbe former power should no more be impaired to tbe detriment of the public than the latter one by giving sucb exemptions, and tbe power of compelling persons to attend at tbe courts for jury duty would be little or nothing to tbe State if there is no money in tbe Treasury to sustain tbe government. Tbe possession of tbe power of taxation is therefore not only essential, but a condition precedent to tbe exercise of tbe other power. You cannot put jurors on tbe panel, or in tbe box, without tbe money to provide for tbe necessary governmental machinery, of which tbe courts are a part.
' Tbe government, it is true, was not organized merely for tbe purpose of exercising tbe power of taxation, yet it was one of tbe extraordinary powers contemplated, as much so as
While the impolicy of exempting jurors perpetually may be conceded, it is not for me to decide that it is unwise, that being a matter solely within the cognizance of the Legislature. Although I may condemn the law as impolitic, my conviction is that it is perfectly valid, and binding on the State. A right to the exemption having become vested by the performance of the services for the stipulated period, it could not be divested by State action. There is no evidence before us, and no suggestion can well be supported by actual proof, that the supply of competent jurors is about to be exhausted by reason of statutory exemptions such as this one. Indeed, the contrary appears in this case, for we are informed that the voluntary fire departments are gradually giving place to the paid departments, the members of which are compensated for their services by the municipalities of the State in money, and not by way of exemption from jury duty, as was the case with volunteer associations.
It must not be supposed that I am attempting, by this opinion, to vindicate solely the right of the defendant in this case. The question involved is more far-reaching than the mere acquittal of one individual, even upon the charge of unlawfully refusing to do service which, by the law, as heretofore settled, he is not bound to render, though that is a sufficient reason for fully discussing the matter. The real signifi-
