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from serving on juries, all persons not qualified electors, effect, imposes jury duty upon all qualified electors, and when our Constitution was so amended as to confer the right of suffrage upon women, jury duty was automatically imposed upon them. To my mind, the portion of § 27, article 4, quoted, is one of exclusion and not one of inclusion. There is, as I view it, a wide difference between a statute or constitutional provision which imposes jury duty upon a class of persons and one which excludes all other persons except a certain designated class. Yet the section mentioned is one of exclusion only. In any event, conceding the contrary view, it would be a case of harmonizing the two sections of the Constitution; and if my view is correct, the adoption of a grand jury system composed of men would not be in the least nullified by such a section as § 27, article 4, as it in no way conflicts with the view that the grand jury should be composed of

men.

If my assumption that the Constitution adopted the common-law grand jury system is correct, it is clear that the statutory provisions relative to the selection of grand jurors are of no assistance to us in determining the main question involved; for otherwise, should the Bolsheviki get control of our legislature, the entire fundamental law of our state would be wiped out within thirty days from their meeting.

Nor am I willing to concede that the decision in Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567, and similar cases in that court, are authority holding a contrary view. Those were cases wherein it was

urged that the exclusion of persons of the African race from jury duty, under a constitutional provision of Delaware which restricted the selection of jurors to white male persons, was in violation of the 14th Amendment to the Constitution of the United States. The 14th Amendment provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

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But it has never been contended that the 14th Amendment conferred all the privileges of citizenship upon women, for if such were the effect, it would seem that it would not have been necessary to amend our Constitution to confer the elective franchise upon women, nor would it be necessary to now amend the Federal Constitution, as is sought to be done, to confer the right upon them. The words of Mr. Justice Field, in Ex parte Virginia, 100 U. S. 365, 25 L. ed. 686, 3 Am. Crim. Rep. 547, are of force in this connection, wherein he says: "But the privilege or the duty, whichever it may be called, of acting as a juror in the courts of the country is not an incident of citizenship. Women are citizens; so are the aged above sixty, and children in their minority; yet they are not allowed in Virginia to act as jurors. Though some of these are in all respects qualified for such service, no one will pretend that their exclusion by law from the jury list impairs their rights as citizens."

ANNOTATION.

Women as grand jurors.

The question, decided in the affirmative in the reported case (PARUS v. DISTRICT CT. ante, 140), whether conferring upon women the right to vote

makes them eligible as grand jurors under an earlier statute, making qualified electors competent to serve as grand jurors, was answered in the af

firmative also by the supreme court of the territory of Washington, in Rosencrantz v. Territory (1884) 2 Wash. Terr. 267, 5 Pac. 305, holding that married women, living with their husbands, were competent as grand jurors, under a statute providing that all electors and householders shall be competent as grand jurors, which was in force at the time of passage of the statute purporting to extend the right to vote to women. The argument of the prevailing opinion was mainly addressed to the point that married women, living with their husbands, were "householders" within the statute. The contention that the statute, if given an application qualifying women as grand jurors, would be unconstitutional on the ground that the jury guaranteed by the Constitution is a jury of men, was disposed of by the statement that the legislature was at liberty to provide for a trial of crime (not infamous) without the presentment of a grand jury at all, and, a fortiori, could provide for its presentment by other than the common-law grand jury. Turner, J., dissented upon the ground that the statute in relation to the qualifications of grand jurors embraced only qualified electors, who were such at the time of its passage, or might become such under then existing laws, and upon the further ground that a married woman, living with her husband, was not a "householder" within the meaning of the statute. The importance of the fundamental question covered by the first ground and the paucity of judicial discussion have led to a somewhat extended quotation from his opinion.

He said: "Who shall be qualified electors, and what classes of citizens shall be subject to jury duty, are entirely different questions, having no proper relation to each other. Therefore, to hold that the legislature, in passing the law now incorporated in the Code as § 2078, meant to establish a rule relating to jurors which might be materially altered and changed every time the legislature enlarged or diminished the qualifications of electors, is to suppose that that body con

templated and intended to provide for a course of conduct by its successors, opposed to the spirit, if not the letter, of the law under which it and they had and have their being. The organic act says: 'Every law shall embrace but one object, and that shall be embraced in its title.' Section 2078 says: 'Laws relating to suffrage may embrace two objects, only one of which need be expressed in the title.' Such is the effect of § 2078, unless it be limited as I have suggested.

"Another argument for that construction is found in the constitutional requirements concerning jury trials.

"Section 2, article 3, of the Constitution of the United States provides: "The trial of all causes, except in cases of impeachment, shall be by jury,' etc. Article 5 of the amendment provides: 'No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,' etc. Article 7 of the amendments provides: 'In suits at common law, when the value in controversy shall exceed $12, the right of trial by jury shall be preserved,' etc. The terms, 'grand jury,' and 'trial by jury,' in these provisions, have been held to secure to the citizens in the courts of the United States and in the courts of the territories, such a grand jury and such a petit jury as was understood and secured by the common law of England. In construing such provisions, both in the courts of the United States and in the courts of the states having similar constitutional provisions, it has been held that the right to a jury trial, and the right to immunity from trial for crime, except on indictment by a grand jury, included all the incidents attaching to such proceedings. One of the incidents of a jury trial is that the jury shall not be composed of less than twelve men. An incident of indictment by a grand jury is that the grand jury shall not be composed of less than twelve men; or, in case that a larger number comprise the body, that twelve must concur in finding the indictment, so that a man shall not be convicted of a crime except by the verdict of twenty-four of his neighbors. Anoth

er incident of trial by jury is that the verdict shall be unanimous. Another incident is that the jury must be selected from the great body of the citizens living in the vicinage; and, where the number from whom juries may be selected has been unreasonably diminished by law, the law has been held unconstitutional, as impairing the right of trial by jury.

"The application of all this to § 2078 of the Code is that it cannot be supposed that the legislature, in framing that provision, meant to leave the important subject of jurors, and the incidents attaching to jury trials, to be affected by legislation upon an entirely different subject-matter.

"It might well be that at some future time the legislature would wish to restrict the elective franchise. A provision limiting the right to vote to citizens of the age of fifty years would be lawful as concerns the rights of electors, but it would be unlawful and unconstitutional as a limitation on the right of trial by jury.

"Another incident of trial by jury at common law, in my judgment, was that the jury should be composed of men. The language of the venire facias was that the sheriff cause to come on such a day 'twelve free and lawful men.' Blackstone gives as one of the causes of challenge to the poll, 'propter defectum;' as, if a juror be alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. Under the word homo, also, though a name common to both sexes, the female, however, is excluded, 'propter defectum sexus.' It cannot be doubted that at common law one of the incidents of a jury trial, with one exception, and that founded on regard for the delicacy of the sex, was that the jury should be composed of men. Blackstone classes that qualification with those of citizenship and liberty. It is said that the rights of the weaker sex, if I may now call them so, are more regarded than in the days of Blackstone; and that the theory of that day, that women were unfitted by physical constitution and mental characteristics to assume and perform the

civil and political duties and obligations of citizenship, has been exploded by the advanced ideas of the 19th century. This may be true. No man honors the sex more than I. None has witnessed more cheerfully the improvement in the laws of the states, and particularly in the laws of this territory, whereby many of the disabilities of that day are removed from them, and their just personal and property rights put upon an equal footing with those of men. I cannot say, however, that I wish to see them perform the duties of jurors. The liability to perform jury duty is an obligation, not a right. In the case of woman, it is not necessary that she should accept the obligation to secure or maintain her rights. If it were, I should stifle all expression of the repugnance that I feel at seeing her introduced into associations and exposed to influences which, however others regard it, must, in my opinion, shock and blunt those fine sensibilities, the possession of which is her chiefest charm, and the protection of which, under the religion and laws of all countries, civilized or semicivilized, is her most sacred right.

"If one woman is competent as a juror, all women having the same qualifications are competent. If women may try one case, they may try all cases. It is unnecessary to say more, to suggest the shocking possibilities to which our wives, mothers, sisters, and daughters may be exposed, unless the legislature should hereafter relieve us from what I believe to be a mistaken construction of the law. These observations, however, are not pertinent here. The question is, What is the law?

"I say that the laws now concerning the important incidents of a jury trial are, by express constitutional provision, what they were at the common law, and that under that law a jury was no jury unless it was composed of men. The jury spoken of by the Constitution is the common-law jury, and consists of twelve men. Note to Sedgwick, Stat. & Const. Law, 493.

"It is true that the constitutional guaranty of indictment before trial is

extended by the Constitution to the trial of offenses only that are infamous; and that, the offense above not being infamous, it is competent for the legislature to have the indictment found by such a grand jury as it pleases, or to prosecute without indictment of a grand jury if it pleases.

"The qualification of grand and petit jurors being fixed by the same section and in the same sentence of the law, however, it is certainly a good argument against a construction of that law that would make women grand jurors in case of misdemeanor, to show that in no case, even by express enactment, could the legislature make women petit jurors or grand jurors to investigate capital or other infamous crimes."

The decision in the Rosencrantz Case, holding married women competent as grand jurors, was followed in Schilling v. Territory (1884) 2 Wash. Terr. 283, 5 Pac. 926; and Walker v. Territory (1884) 2 Wash. Terr. 286, 5 Pac. 313. After a change in the personnel of the court, however, these decisions were overruled in Harland v. Territory (1887) 3 Wash. Terr. 131, 13 Pac. 453, it being held in that case that the act purporting to confer the elective franchise on women was invalid, because its title was defective. The decision on that point, of course, was fatal to the contention that women were qualified as grand jurors. Turner, J., however, took occasion to express his adherence to the views expressed by him in the dissenting opinion in the Rosencrantz Case, against the position that the extension of the franchise to women could, ipso facto, bring them within the existing statute, prescribing the qualifications of grand jurors. In this connection he said: "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 servilely follows the letter of the law, and sacrifices the spirit. Thus, that is made to be the 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.'" Langford, J., who concurred in the decision that the statute extending to women the right to vote was invalid because of its title, was of the opinion also that married women, living with their husbands, were not "householders," and for that reason also were not qualified to serve as grand jurors. Greene, Ch. J., dissented as to all points.

The decision in the Harland Case that married women were not eligible as grand jurors was followed in Rumsey v. Territory (1883) 3 Wash. Terr. 332, 21 Pac. 152. The opinion states that two of the present quorum were not on the bench when the Harland Case was decided, and did not adopt its reasoning further than to concur in the view there presented that the statute purporting to make females qualified electors was invalid, because of its defective title. The Harland Case was also followed on the latter ground in White v. Territory (1888) 3 Wash. Terr. 397, 19 Pac. 37, no opinion being expressed as to the broader grounds.

In a case governed by the law prior to the amendments which expressly made women competent to serve both as jurors and grand jurors, it was held

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1. Where a partner breaks the covenants of a partnership and thereby wrongfully, by force and fear, causes its dissolution, the other may maintain an action of assumpsit against him for the damages resulting. [See note on this question beginning on page 158.]

Damages ship.

dissolution of partner

2. The damages in such cases are the profits which would have accrued to the plaintiff from a continuation of the partnership business and which Headnotes by HOOKER, C.

were a loss to him by the unauthorized dissolution.

[See 20 R. C. L. 928.]

Partnership - Statute of Frauds.

3. The Statute of Frauds will not prevent actions of this character from being maintained.

ERROR to the District Court for Dewey County (Mathews, J.) to review a judgment in favor of plaintiff in an action brought to recover damages alleged to have been caused by the wrongful dissolution of a partnership. Affirmed.

The facts are stated in the Commissioner's opinion.
Mr. W. A. Briggs for plaintiff in er-

ror.

Messrs. Adams & Smith for defendant in error.

Hooker, C., filed the following opinion:

Wilcox sued Farwell to recover damages alleged to have been caused to him by Farwell ousting him by force and fear from a partnership which he contends they had made and operated in Dewey county from August, 1915, to April, 1916.

Wilcox contends that one M. owned certain property in the city

of Seiling, and also a Ford agency, which he wanted to sell for the sum of $3,000, and that he wanted to buy it, but did not have the money, so he (Wilcox) interested Farwell in the deal, and Farwell refused to pay over $2,500 for same, and in order to consummate the transaction he paid to M. $500 and Farwell paid to him $2,500, and the deed was made to Farwell to the property, and the Ford agency was taken in the name of Farwell, and he and Farwell operated the business as a partnership, agreeing to share

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