Harland v. Territory

Mr. Justice Turner delivered the opinion of the court. A question arises in this case which was before the court at its July term, 1884, namely, the question whether married women living with their husbands are competent grand jurors in this territory. The question was then decided in the affirmative, but by a divided court. (Rosencrantz v. Territory, 2 Wash. 267.) Since that decision there has been a change in the membership of the court, and a majority of the quorum sitting in this case finds itself unable to agree with the views expressed or the conclusions announced in the first decision. Two members of the court, however, yet adhere to that decision. . This circumstance gives ground for hesitation in overruling the same; but there are several reasons which the present majority think justify them in giving effect to' their views, and which will be likely to prevent embarrassment therefrom in the future administration of the law. 1. We think the first opinion reached did not meet with the concurrence of the bar of the territory. It established no rule of property, and its principles have not been long applied. 2. A new question not argued or passed on in the first case arises in this case, and is decisive of it. 3. Both of the judges who adhere to the first opinion, after a service of long duration, in which they have honorably illumined our judicial history by great learning and ability, and by the purity of their lives and the uprightness of their official conduct, are about to retire from office by reason of the expiration of their terms. — 137 — It is proper for me to add here that the membership of the court may be still further changed in the near future, and speaking of myself alone, without such great detriment to the public interest. I pass, then, without further preliminary remarks, to' a consideration of the reasons which in my judgment properly govern the question. I shall not reiterate the arguments embraced in the-dissenting opinion read by me in the first case. Although presented most imperfectly by reason of the haste in which that opinion was prepared, the views there expressed yet seem conclusive to my mind against the opinion then reached by the majority of the court. There are, however, some additional thoughts pertinent to the reasoning of the majority in the first case to which I will advert before going-on with the new question involved. Section 3078 of the Code provides that “all qualified electors shall be competent to serve as petit jurors, and all qualified electors and householders shall be competent to serve as grand jurors.” At the session-of 1883-84, the legislature passed an act entitled “An act to amend section 3050, chapter 238, of the Code of Washington Territory,” which act, if valid, makes females of like age with males qualified electors. The claim is that females are competent jurors by reason of these two statutes. From the earliest period in the history of the common law, jurors, grand and petit, have been composed of men. The language of the venire facias was that they be liber et legalis homo, and according to Blackstone, “ under the yrord homo, though a name common to both sexes, the female, however, is excluded, propter defectum sexus.” When legislators have prescribed the qualifications of jurors, the requirement that they should be males has always been implied. Section 2058 of the Code carries with it that implication, and undoubtedly that which is — 138 — implied would have been clearly expressed if it had ever ■occurred to the members that a subsequent legislature would confer the elective franchise on females. 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 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.” The body of our law may be likened to an ocean, both because of its extent and its characteristics. Every atom is in juxtaposition with its neighbor, the whole pliable and yielding, and yet forceful, and notwithstanding its immense force, subject to influence and modification by the slightest addition. Every addition which may be made to the mass forces back the several parts with which it comes in contact, as far as it may and ■ought, while the whole confines the part to its just and — 139 — proper limits. No law can be considered alone and by itself. Every law carries with it impliedly, in spite of its terms, limitations and extensions which the great mass of the law forces on it and into it. These limitations are infinite, and as extensive as the law itself. An illustration in point is the rule of the common law that a child under seven years of age is incapable of any crime. Mr. Bishop, the most philosophical of all our law-writers, thus speaks of the limitation thus mentioned: “Therefore, when a statute creates a crime, its terms, however general, are no more applied to such a child than are similar terms of the common law. And this sort of interpretation extends through all our laws, the written and the unwritten alike. The books contain cases in which counsel and the courts forget it; but none in which judicial persons, with their eyes open and duly warned, deliberately reject it. We sometimes read in judicial opinions that those pronouncing them deem it due to the legislature to follow its directions, and not to make exceptions where it has made none; but this sort of language should not be taken as a denial of what every person familiar with our reports knows; namely, that no judge ever deliberately undertook to administer a statute without admitting those exceptions to it which are recognized in the other parts of the legal system. Nor did any legislative body ever proceed on the idea that its enactments are to be put in force by courts so ignorant of legal affairs as to deem them meant for independent rules to be limited by no others, and to override all laws antagonistic to their general words. For legislatures and courts alike recognize the fact, whieh common sense teaches to every thoughtful person, that it is neither possible nor desirable in any system of laws to attach to each particular law every qualification embraced in every other. So voluminous would the laws thus become, and so often would conflicts be found in them, in spite of every legislative caution, and so diffi — 140 — cult would it be to explore their immense masses, that their usefulness would be indefinitely diminished.” (Bishop on Statutory Crimes, sec. 117, 117 a.) In view of this forcible and conclusive exposition of the relations to each other of laws, old and new, it needs only to remember the conditions surrounding the subject at the-time section 2078 was enacted, to gain the assent of the mind to the proposition that the implication must have attached to thát law that jurors, both grand and petit,, should be qualified electors, who are males. Ought this limitation to be destroyed by implication derived from a legislative act which confessedly deals with another subject? I think not. The change is so-marked, and the labor and responsibility which it imposes so onerous and burdensome, and so utterly unsuited to the physical constitution of females, that we ought not to depart from the old order without the most indubitable evidence that the legislature so intended. Weave not without high authority on this precise question. The Supreme Court of Massachusetts, in a case where-the statute under which a female claimed the right to-assume the office of an attorney at law was broad enough to sustain her claim, denied her the right on the precise-ground here put. (Robinson’s Case, 131 Mass. 377.) In discussing that case the court says: “ The intention of the legislature in enacting a particular statute is not to be ascertained by interpreting the statute itself alone,, and’ according to the mere literal meaning of its, words. Every statute must be construed in connection with the whole system of which it forms a part, and in the light of the common law and of the previous statutes upon, the same subject; and the legislature is not to be lightly presumed to have intended to reverse the policy of its-predecessors, or to introduce a fundamental change in long-established principles of law.” In a case arising in Illinois, the Supreme Court of that state made a similar decision upon similar reason — 141 — ing, and the action of that court was affirmed, on appeal, by the Supreme Court of the United States. (Bradwell v. Illinois, 16 Wall. 130.) The language of Judge Bradley in the latter case is worth quoting at length: “The claim that, under the fourteenth amendment of the constitution, which declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that state, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed as an historical fact that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belong to the female sex evidently unfit it for many of the occupations of civil life. The constitution of the family organization, which is found in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong or should belong to the family institutions is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.” Thus we see that the fourteenth amendment, which certainly spreads its protecting shield over females because females are citizens, is yet not strong enough to overcome the implied limitations of prior law and custom with which it was brought into association when it was adopted. — 142 — In another case well known to the profession the Supreme Court of the United States, without any express law or rule of court to prevent, refused to admit a female to practice as an attorney at its bar. So, also, upon a similar application did the Supreme Court of Wisconsin. I regret that I am unable to refer to the volume containing the admirable opinion of Chief Justice Ryan in the Wisconsin case. One other reference will suffice on this branch of the case. The chief justice of this court, in a case in his district in which it was attempted to take advantage of a legislative blunder, whereby in attempting to add a clause to a statute all except the added clause was repealed, said: “There can be no reasonable question,, then, it seems to me, as to the intent of the legislature. Anybody of any sense who is not a lawyer or a judge can tell at a glance what that intent is. When a man becomes a lawyer he does not have to-lose his wits, nor does a judge have to be a fool. I desire never to be one of those judges who when they discover in the legislative proceedings a clerical mistake, inadvertence, or blunder will push it to extremity, and give to an unhappy effort of expression a sense and power palpably never intended, and permit the awkwardness of a phrase to work ruin and desolation to the poor.” (Greene, C. J., in Jackson v. Winn, Port Townsend Term.) This is most excellent language, and the principles which it announces are extremely pertinent to the. question presented in this-case. They are decisive of it. I pass now to the question not considered in Rosencrantz v. Territory, 2 Wash. 267. That question concerns-the validity of the act of the legislature conferring on females the elective franchise. Of course, if that act is invalid, the whole superstructure of the argument by which female jury duty is demonstrated falls to the ground a broken and shapeless mass. The objection — 143 — able feature of that law is its title, which reads: “An act to amend section 3050, chapter 238, of the Code of Washington Territory.” The organic .act of this territory declares, as one of the limitations on legislative action, the following: “To avoid improper influences which may result from intermixing in the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.” Is an amendatory act of our legislature, the object of which is indicated in the title by a reference only to the section of the Code intended to be amended, a compliance with this mandatory direction ? The language of our Organic Act is identical with that used in the constitution of New Jersey. In each of the states of Minnesota, Kansas, Kentucky, Nebraska, Alabama, South Carolina, Tennessee, and Arkansas, the language of the constitution is: “ No law shall embrace more than one subject, which shall be expressed in its title.” In Michigan the language is the same, except that the word “object” is used instead of “subject.” The language in Wisconsin and New York is: “No local or private bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” California, Texas, Indiana, Oregon, and Iowa have provisions similar to Kentucky and the other states in that class, with the addition that “ if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in its title.” The following, taken from the language of the courts, will indicate the purpose for which such constitutional restrictions were adopted: — • “I would observe that the traditionary history of this clause is, that it was inserted in the constitution of 1798 at the instance of General James Jackson, and that its — 144 — necessity was suggested by the Yazoo act; that memorable measure of the 17th of January, 1795, as is well known, was smuggled through the legislature under the caption of an act ‘for the payment of the late state troops,' etc.” (Lumpkin, J., in Mayor of Savannah v. State, 4 Ga. 26.) “The purpose to be effected by this section was to prevent the incorporation in one bill of provisions of a nature totally diverse and without necessary connection, with a view to effect a general combination of the particular friends of each measure, and thereby secure their enactment, when some or all of them would likely fail if left to stand on their own merits; and also the entrapping of legislators into the support of a bill into which by dexterous management some insidious provision had been inserted of which the title gave no intimation.” (Albrecht v. State, 8 Tex. 216.) “These provisions were adopted to prevent the legislature from passing what are commonly known as ‘ omnibus bills.’” (Fletcher v. Oliver, 25 Ark. 199.) “The object of this provision was, that neither the members of the legislature nor the people should be misled by the title.” (Sun Mutual Insurance Co. v. Mayor etc. of New York, 8 N. Y. 239.) “The intent of this provision of the constitution was to prevent the union in the same act of incongruous matters, and of objects having no connection or relation. And with this it was designed to prevent surprise in legislation, by having matters of one nature embraced in a bill whose title expressed another.” (State v. County Judge, 2 Iowa, 260.) “The object of this constitutional provision was to require so clear an expression of the subject of the bill in the title, that it would at once apprise legislators and others interested of the precise subject of the proposed legislation.” (City of Kansas v. Payne, 71 Mo. 159.) Mr. Cooley, after an examination of all the authorities, — 145 — sums up the object and purpose of such provisions thus: “It may, therefore, be assumed as settled that the'purpose of these provisions was: 1. To prevent hodgepodge or log-rolling legislation; 2. To prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and very carelessly and unintentionally adopted; and 3. To fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard therein by petition or otherwise, if they shall so desire.” (Cooley’s Constitutional Limitations, 5th ed., 173.) The provision of our Organic Act now under consideration was adopted by Congress in view of all these provisions of the state constitutions, with which, and with the construction of which, senators and members were entirely familiar; and undoubtedly the purpose to be accomplished was the same as that accomplished by the state constitutions. An attempt has been made by some to draw a distinction, because the act of Congress use the word “object” while most of the state constitutions use the word “subject.” We have seen that the •constitutions of Michigan and New Jersey use the word “object,” and as the former state is the home of Mr. Cooley, that eminent jurist, in stating the purpose of all these provisions, would most likely have seen and stated the distinction, if one in fact exists. Moreover, if any distinction is to be made, it seems to me that the word ‘ object,” in the connection in which it is used, is obviously of broader significance than the word “subject.” “Object” may be used as having the sense of effect, — the thing intended to be accomplished; not the means by which it is to be accomplished, which is properly the subject. For instance, the object of the act in question was to confer the elective franchise on females; its sub — 146 — ject was the subject-matter on which, in accomplishing that object, the legislative will operated, namely, the section of the Code defining the qualifications of electors. I do not, however, lay particular stress on the use of the-word “object” instead of “subject” in our Organic Act. For all practical purposes, the words are synonymous, as indicated by Mr. Cooley. In applying the provisions in state constitutions, the courts have uniformly held that a very general statement, in the title of the purposes of the law will be sufficient. Still, it is held that the titles must afford some indication at least of the object of the laws or the effects of their provisions. The object or subject which the title shall express must be set forth with sufficient fullness to give the members who are to vote on the law, and the people for whom they vote, some idea of the change which the new law proposes to make. A very meager expression will be sufficient, but some expression there must be. The expression of a purpose to amend a particular section of the Code gives it to be understood that the law is to be changed; but what the law is that is to be changed, and in what respect it is to be changed, is a matter left entirely in the dark. As every law makes some change in previously existing law by adding to or subtracting therefrom, the title “An act” would appear to convey fully as much actual, present information. It is-true that the title under consideration gives a reference to a source from whence information may be derived as to the law proposed to be changed, but it gives no idea whatever indicative of the change that is to be made. When the seeker after information gleans all that the reference indicates, he is driven back to the body of the new law to find what the change is to be, — a source from which he never would have strayed if the object of the new law had been accurately expressed in the title. But I think a mere reference insufficient, however full the information to which it may lead. The makers of — 147 — our fundamental law were dealing with conditions as they knew them to exist. In theory, legislators inform themselves carefully and laboriously of the effect of the laws upon which they vote. In practice they do not. Laws are often passed by their titles alone. They are very rarely referred to in publications, official or otherwise, prior to their passage, except by their titles. Knowing this fact and accepting it, and with the design of making the best of it, our constitution makers gave their mandate, intending to obviate as far as possible the evils resulting from this lax way of doing business. If legislators are too busy or too negligent to have read in full or to read laws upon which they are to vote, how vain to expect them to read laws which the laws they are to vote are to affect, with the sole purpose of determining therefrom whether it is worth while to read the laws upon which they are to vote. Congress had no such absurdity in mind, but it intended that the titles to laws should be in themselves an index .to their purpose, so that on hearing them read or on reading them the attention of members and of citizens as well would be excited, and their energies stimulated to an examination of the proposed laws. It seems to me that it is paltering with the act of Congress to say that the object of a particular law is to amend a section of the Code, and that the title is sufficient if it express that much. It would be equally accurate to say that the object of all penal laws is to secure the peace and good order of society, and that laws denouncing robbery, burglary, or larceny would have their object adequately expressed by the title, “An act to secure the peace and good order of society.” The latter title goes as far beyond as the former stops short of expressing the true object. The object of an amendatory act is not to amend. Such a construction is too narrow; it sticks in the bark. Legislatures do not amend simply with the object of amend — 148 — ing; tbe object in every case is to introduce some new substantive rule of action by the new law, or to abrogate some such rule in the old law. It is attached to the old law because its provisions are supposed to be germane to that law. It might be enacted without reference to it; in which case its title would be required to give intimation of the new rule. What magic is there in the name “ amendment ” which exempts a law to which it is tacked from the salutary provisions applicable to every other law ? Fortunately, we are not without authority to guide us on this point. It has been held in New York several times that reference in the title of a law to a particular section of the law to be amended is not a sufficient compliance with the constitution. The title itself must give information, and not simply a reference to sources of information. (People v. Hills, 35 N. Y. 449; People v. Briggs, 50 N. Y. 553; Tingue v. Village of Port Chester, 4 N. E. Rep. 625.) The last case was decided January 19, 1886. The same thing in effect has been held in Minnesota. The title of an amendatory act not indicating its object further than was done by the incorporation therein of the title of the act amended, it was held that provisions in the amendatory act not fairly within the object described by the title of ‘the original act were invalid. (People v. Godway, 28 N. W. Rep. 101.) The logic of this case is clearly that a reference to the title of the old law is sufficient only when that title is broad enough to cover the things provided for by the new law. A fortiori, if the old law have no title indicating its contents, a reference to it would be entirely insufficient. The same court in another case cites the New York cases, but guards against their adoption to the full extent, because not necessary for the decision of the case then before it. (State v. Smith, 28 N. W. Rep. 241.) — 149 — A decision in Indiana is much to the same effect as that first quoted from Minnesota. (State v. Bowers, 14 Ind. 195.) A Michigan decision appears to be to the same effect. In a case in that state an amendatory act was sustained, the title of which referred to particular sections of a certain act, the title of which was included in the title of the amendatory act, and a section of the old act not described in the title of the new act was held properly amended. The case, which is not very clear, evidently proceeded on the ground that the reference to the title of the old act was in itself a sufficient indication of the things which the amendment might accomplish. The following expression is peculiarly in point on the matter here involved: “ The practice of amending by reference to sections instead of by reference to the subject or to the entire statute is one which creates a great deal of mischief, and in no way carries out the real design of the constitution, and is of no practical value in most cases in indicating what changes are to be made or what precise object is in view.” (Comstock v. Judge of Superior Court, 39 Mich. 195.) The courts of California appear to maintain the same doctrine. The following is the latest decision in full of the Supreme Court of this state: “We are of opinion that the act of the legislature entitled ‘An act to amend sections 4000, 4003, 4004, 4006, 4022, 4023, 4024, 4025, 4026,4028,4029,4046,4087,4133,4104,4109,4115,4116, 4119,4165,4192,4204,4221,4256,4314, 4328,4329,4344, and to add two sections, to be known as sections 4292 and 4348, and repeal sections 4005, 4105, 4106, 4110, 4111, 4134, 4304, and to establish a system of county government/ approved April 22,1880, is in conflict with the constitution of the state, and void.” (Leonard v. January, 56 Cal. 3.) As there is nothing in the opinion to lead to the conclusion that the different things proposed in the act were incongruous, the only objection — 150 — which is indicated is the obscurity of the title of the act. Such appears from the brief to have" been the objection urged by counsel. It appears, on the contrary, to have been held in Georgia that the title of the act is sufficient if it refers to the section of the statute amended. (Wheeler v. State, 23 Ga. 9.) Also in Arkansas. (Noonan v. Curry, 27 Ark. 440.) It appears also that the title of a repealing statute is sufficient in Louisiana if it designates the section repealed. (Smith v. Garrett, 29 La. Ann. 637.) The last cases are taken from a digest. How accurately the points decided are digested I have no means of knowing. An Alabama case found in the same work does not, however, bear high testimony to its accuracy. Concerning the Louisiana case, if it be correctly reported, distinction is to be drawn between a repealing act and an amendatory act. A reference in the title of the former to the section repealed manifestly gives reference to a source of information leading to a perfect knowledge of all that is proposed to be done. Scattered throughout the reports and text-books are many expressions to the effect that the incorporation in the title of the amendatory or repealing act of the title of the act to be amended or repealed is a sufficient compliance with the constitutional requirement. This is undoubtedly true; and it. is true because the subject of an amendatory act is required in all cases to be germane and congruous to the general object of the original act which it affects, and to recite the title of the original act in the title of the amendatory act is to express the subject of the amendment in the amendatory act. This view explains many cases which are quoted as authority for the proposition that a reference to the amended law is sufficient. Of this class are State v. Bowers, 14 Ind. 195; Yellow River Improvement Company v. Arnold, 46 Wis. 216; State ex rel. v. Bankers’ etc. Association, 23 Kan. 500; State ex rel. Harris v. Laughlin, 75 Mo. 367; Gatling v. — 151 — Lane, 17 Neb. 81; State v. Lancaster Co., 17 Neb. 85; Miller v. Hueford, 14 Neb. 81; Pebple ex rel. Little v. Wilsea, 60 N. Y. 507; State ex rel. Attorney-General v. Mead, 71 Mo. 268. It must be confessed that in the Missouri case and in the Kansas cases last referred to, the courts use some unguarded expressions not required by the cases before them. On the whole, I think the clear weight of authority, and certainly sound reason, is against the position that a reference to a section in the title of an amendatory act without more is in any case sufficient. For a valuable collection of cases on this subject, see Mr. Freeman’s notes to Davis v. State, 61 Am. Dec. 331. By reference to the cases there cited, it will be seen that provisions such as that in our organic act are mandatory, and must be obeyed. I give full assent to the doctrine that courts should hesitate before declaring an act of the legislature invalid; but while this is so, it is equally true that courts must give effect to views of law clearly entertained and necessary to the determination of causes; and this, even to the •extent of declaring laws that are so unconstitutional. My conclusions concerning the validity of this law have not been hastily arrived at. Argument concerning a law similarly circumstanced was had before me in my district several months ago, and I deferred a decision of the question until after the holding of this term, partly in the hope that the question might be presented here and .authoritatively determined. My associates have also had the benefit of argument in their districts, and have expressed opinions thereon before coming here. So that we are all as well equipped to arrive at a correct opinion .as we can well hope to be, and as this question arises in this case and meets us squarely, it ought to be decided. If the law conferring the elective franchise on females was not a fruit of disobedience to the wise and salutary — 152 — restraint of the Organic Act, as has been charged, and if there is a public sentiment in the territory which favors such a measure, the next legislature will probably re-enact it. It will be done then, if done at all, openly and in a guise which is not objectionable, and after a full opportunity has been given the people to express their views. A measure of such a character, involving changes in our social and political structures so momentous, and as many men and women believe, so disastrous unless the measure lapse into disuse, ought never to be urged or passed under any other conditions. For the reasons hereinbefore stated, I believe the act. amending section 3050 to be in conflict with our Organic Act, and void. For the same reasons the act of the legislature approved January 29,1886, Statutes 1885-86, page 113, is void. For the same reasons the act approved February 3,1886, Session Laws 1885-86, page 128, is void except in so far as it purports to amend sections 3079 and 3084 of the Code. These sections, relating as they do to-the mere minutiae of conducting elections, could not,, under the title affixed to that act, be amended so as to-confer the elective franchise on any one, nor has any amendment of them been attempted which would have-that effect if valid. Females, then, are not voters in this territory, and not. being voters, they are not competent to sit on juries. I do not believe that there is error in the record other than that committed in the ruling on the question which I have been considering; for that error, however, concerning which a majority of us are agreed, the judgment of the lower court must be reversed, and the cause remanded for further proceedings. Note. — Since writing and delivering the above opinion, I have found the case in 27 Arkansas mentioned. That case relates entirely to a declaration of the Code of the state, to the effect that none of its provisions shall be153 repealed unless such intention is expressly stated, etc.;, no constitutional question was involved.