Opinion
(Filed 23, October, 1906.)
Jury Duty — Exemptions — Repeal — Impairment of Contract.
1. The exemption from jury duty claimed by defendant under ch. 55, Private Laws 1868, providing that five years' active service in the fire company incorporated by that act shall exempt its members from jury and militia duty during life, is directly in conflict with Rev., sec. 1957; which directs the County Commissioners to place the name of all tax-payers of good moral character, etc., on the list for jury duty, the exemptions being stated in sec. 1980, which does not exempt the defendant: Held, that the Act of 1868, if public in its nature, is repealed by Rev., sec. 5453, or, if it is a private act, by sec. 5458.
2. Exemption from jury duty claimed by virtue of services in a fire company for five years, as prescribed in its charter, is not a contract, but a mere privilege, and may be revoked by the Legislature at any time.
APPEAL by Robert C. Cantwell from W. R. Allen, J., at April Term, 1906, of NEW HANOVER.
Robert D. Gilmer, Attorney-General, and Walter Clark, Jr., for the State.
Davis Davis and E. S. Martin for the defendant.
The 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 ch. 55, Private Laws 1868-'69, ratified 8 March, 1869, which incorporated the Wilmington Steam Fire Engine Company and contains the provision that its "members shall, during membership, be exempt from all jury and militia duty, and in case of active service in said company for five (605) successive years, said exemption shall continue during the life of the member rendering such active service." The defendant served actively five successive years.
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 Rev., 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, Rev., 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 Rev., 1957, and not exempt under Rev., 1980, placed his name on the jury-list.
Revisal, 1957, is broad and succinctly prescribes what citizens shall be liable to jury duty, subject only to the exemptions set out in Rev., 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 Rev., 5453: "All public and general statutes not contained in this Revisal are hereby repealed, with the exemptions and limitations hereinafter mentioned." If, however, it is a private act, it is not less repealed by Rev., 5458: "No (606) act of a private nature, unless in conflict with the provisions of this Revisal * * * shall be construed to be repealed by any section of this Revisal." The exemption claimed by defendant under ch. 55, Private Laws 1868, is directly in conflict with Rev., 1957, which directs the County Commissioners to place the names of all tax-payers of good moral character, etc., on the list for jury duty, the exemptions being stated in sec. 1980, which does not exempt the defendant. It will be noted that this repealing clause is radically different from sec. 3873 of The Code, which provides: "No act of a private or local nature * * * shall be construed to be repealed by any section of this Code." The General Assembly had seen the inconveniences of this section, and the radical change of language in Rev., 5458, shows a clear intention to repeal all private acts inconsistent with the provisions of the Revisal; language could not be clearer.
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 be altered from time to time or repealed." The Constitution was adopted 18 April, 1868, and if the exemption in the charter of the Wilmington Fire Company, ratified 8 March, 1869, was a contract, there was (607) written into that contract, as a part of it, that the Legislature had a right to amend or repeal from time to time any and all rights thereby conferred.
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. E. (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."
"Exemption from service on juries is always subject to legislative (608) repeal, even as to persons who, by the performance of specified services, have earned an exemption under its provisions." Dunlap v. State, 76 Ala. 460. That case was exactly "on all fours" with this, the exemption from jury duty being claimed by virtue of services in a fire company for five years as prescribed in its charter. Clopton, C. J., in a very able opinion quotes with approval from Bragg v. People, 78 Ill. 328: "It is impossible for the State to protect life, liberty and property without the aid of juries. The system is a vital part of the machinery of government. It is the undoubted duty of the legislative department to provide for the selection of jurors in such way as shall best subserve the public welfare. Of this, of course, it must necessarily be the judge, and may provide that for the time being, certain classes, by reason of what shall be deemed sufficient public considerations, shall be exempt; but to say that such exemption shall be perpetual, whatever may be the public necessities, would be to authorize one Legislature, by unwise legislation, to tie the hands of its successors, even to the extent of destroying the government" — citing many authorities, a few only of which we will quote.
In Rust, ex-parte, 43 Ga. 209, Lochrane, C. J., holds that a general statute providing for jury service appeals 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 any time." 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 Legislature, and are revoked by a general law, prescribing those subject to jury duty, without excepting those (609) claiming exemption under prior local or general acts." In re Scranton, 74 Ill. 161. But the subject is most fully and conclusively discussed and the same conclusion reached in Bragg v. People, 78 Ill. 328. In that case the plaintiff had served seven years in a fire company, whose charter provided that such length of service should exempt from jury duty. The Court held that no Legislature can sell, or give, or bargain away, irrevocably, the sovereign right of the State to command the service of its citizens for military, jury, road or other public duty, and adds: "Service performed in the fire department can, by no fiction, be made to take the place of the man in the jury-box." There are other cases to the same purport as above.
The sole case to be found to the contrary is In re Goodwin, 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, 4 Wheaton, 518. 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 R. R. 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. For 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 S. 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 sec. 3873 of The Code. This, as we have already seen, is (610) otherwise under the provisions of Rev., 5458.
Affirmed.