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trict court of said county until the that we have taken our grand jury next annual selection of trial jurors system from the common law, it under this act. The said board must be recognized that the class of shall thereupon select from the persons which the common law dequalified electors of the county, clared to be subject to grand jury whether registered or unregistered, duty was, at the adoption of our not exempt by law from jury duty, Constitution, changed, and in its such number of qualified electors as place was substituted a class defined it has been estimated to be neces- as "qualified electors." So, qualisary. The names of the electors so fied electorship in grand jury servselected shall be entered upon the ice holds the same place under our minutes of said board, together with organic law as was held by the term, the occupation and place of resi. "liege subjects of the King," at comdence of each of such electors so mon law. selected."
Section 1 of article 2 of our ConSection 4931, Rev. Laws, pro- stitution, as adopted by our constivides: "It shall be the duty of the tutional convention, provided that district judge and any one of the “every white male citizen of the county commissioners of the county, United States (not laboring under at least once in each year and as the disabilities named in this conmuch oftener as the public interest stitution) of the age of twenty-one may require, to select from the jury years and upwards who shall have list twenty-four persons who shall actually, and not constructively, rebe summoned to appear as grand sided in the state six months, and in jurors at such time as the judge may
the district or county thirty days order.
If from any cause next preceding any election, shall be a sufficient number do not appear, entitled to vote," etc. or those who appear are excused By the amendment of 1877, apor discharged, an additional num- proved and ratified in 1880, the ber, sufficient to complete the grand word "white" appearing before the jury, shall be selected from the jury word "male" was stricken out. We list by the judge and clerk and sum- mention this amendment because it moned to appear in court at such becomes significant at a later place time as the court may direct.” in our opinion. This section of our
It will be noted that these statu- Constitution, as it now stands after tory enactments follow the direction adoption and ratification, reads as of the constitutional provision. By follows: “All citizens of the United § 4937 the board of county commis- States (not laboring under the dissioners are required to select a jury abilities named in this Constitution) list for the ensuing year, which list of the age of twenty-one years and shall contain the names of qualified upwards, who shall have actually, electors only. Section 4931 makes and not constructively, resided in it the duty of the district judge, the state six months, and in the diswhether acting with one of the trict or county thirty days next precounty commissioners or with the ceding any election, shall be entitled clerk of the court, to select the mem- to vote.
There shall be no bers of the grand jury from denial of the elective franchise at this jury list, the names of which
any election on account of sex.” have been previously selected by the
By this last amendment, the right county commissioner from the
of electorship at any election was qualified electors of the county.
accorded to women. Hence, any Nowhere do the statutory provisions woman of the age of twenty-one lose sight of the constitutional req
years and upwards, who has actually uisite and direction as to the quali- and not constructively resided in fications of grand jurors, to wit, that this state six months, and in the disthey shall be qualified electors.
be qualified electors. trict or county thirty days next preHence, while it may properly be said ceding an election, is a qualified
(- Nev. —, 17. Poo. 706.) elector, and has the right to vote tion of the state, as niodified by the at any district, county, or state elec- Federal amendment, were entitled tion, providing she has complied to vote. To the same effect was the with the Election Laws governing case of Strauder v. West Virginia, such elections.
100 U. S. 303, 25 L. ed. 664, 3 Am. It is contended by petitioner that Crim. Rep. 515. The question was the granting to woman of the right again dealt with by the Supreme to vote, although the same makes Court of the United States in the her a qualified elector, does not case of Bush v. Kentucky, 107 U. S. thereby clothe her with the privilege 110, 27 L. ed. 354, 1 Sup. Ct. Rep. or obligation of grand jury duty. 625. In other words, it is contended that To the suggestion that in adoptwhile, by the constitutional amend- ing the grand jury system we adoptment, women are made qualified ed such system as it was known and electors, this does not of itself make as it existed at common law, it may them qualified for grand jury be said, conceding that we adopted service.
the system itself, or rather the We think that the contention of principle of the grand jury system, petitioner has been answered by the from the common law, that when we courts in those cases where the same incorporated the system into our contention was raised, following the laws we departed most emphatically adoption of the 14th and 15th from the lines which establish grand Amendments to the Federal Con- jury qualifications at common law, stitution. The enactment of the for under the ancient system, not 14th and 15th Amendments gave only must a grand juror have been citizenship and the privileges of a liege subject of the King, but the citizenship to persons, without re- venire facias prescribed that they gard to race, color, or previous con- be liber et legalis homo. Chitty redition of servitude. The adoption minds us that the regulation was of the 14th and 15th Amendments that they be freemen or freeholders, rendered inoperative the provisions and later statutes of England fixed in the organic law of the sev- a more restricted latitude from the eral states whereby the right of standpoint of property qualificasuffrage was limited to the white tions, thus: “That every man berace. The question of the right of tween the ages of twenty-one and members of the colored race to serve sixty years, residing in any county as jurors where a statute confined in England, who shall have in his the selection of jurors to persons own name, or in trust for him, withpossessing the qualifications of in the same county £10 by the year electors, and where such was limit
above reprizes, on lands or teneed to the white race, was dealt with ments, whether of freehold, copyby the Supreme Court of the United
hold, or customary tenure, or of anStates in the case of Neal v. Dela- cient demesne, or in rents issuing ware, 103 U. S. 370, 26 L. ed. 567, out of any such lands or tenements, and in the opinion of that court, or in such lands, tenements, and rendered by Mr. Justice Harlan, it rents, taken together, in fee simple, was held that though no constitu
fee tail, or for the life of himself or tional amendment had been adopted
some other person, or who shall by the state of Delaware conform
have within the same county £20 by ing to the 15th Amendment, never
the year above reprizes, in lands or theless, by operation and by force
tenements, held by lease or leases, and effect of the Federal amend
for the absolute term of twentyment, a statute confining the selec
one years, or some longer term, or tion of jurors to persons possessing for any term of years determinable the qualifications of electors was en- on any life or lives, or who, being larged in its operation so as to em- a householder, shall be rated or brace all those who by the Constitu- assessed to the poor rate, or to the inhabited house duty in the county female. Woman, he says, was exof Middlesex, on a value not less cluded propter defectum sexus. The than £30, or in any other county on right of electorship is, by our laws, a value not less than £20, or who made incident to the right, duty, shall occupy a house containing not and privilege of grand jury service. less than fifteen windows, shall be It is the basis of grand jury selecqualified, and shall be liable to serve tion. To say that women, after beon juries for the trial of all issues ing empowered with the right of in the civil and criminal courts, such electorship, were nevertheless exissues being respectively triable in cluded from grand jury service, the county in which every man so would be to say that, although the qualified respectively shall reside, organic law made electorship the and shall also be qualified and liable basis of grand jury service, there to serve on grand juries, in courts was nevertheless within the body of of sessions of the peace, and on the electorate a class excluded from petty juries, for the trial of all is- grand jury service, the only basis sues joined in such courts of ses- for this exclusion being, as Blacksions of the peace and triable in the stone puts it, propter defectum county riding, or division, in which sexus. When the people of this every man so qualified respectively state approved and ratified the conshall reside.”
stitutional amendment making How far we departed from all of women qualified electors of the these qualifications as prescribed state, it is to be presumed that such and recognized at common law may ratification carried with it a declabe measured at a glance, when by ration that the right of electorship our organic law we expressly de- thus conferred carried with it all clared that the basis of exclusion of the rights, duties, privileges, and from service on juries, so far as immunities belonging to electors; their primary selection was con- and one of the rights, one of the cerned, was the lack of qualified duties, and one of the privileges beelectorship. Nev. Const. § 27, art. 4. longing to this class was declared It may be urged that at the time of
by the organic law to be grand jury the framing of our organic law, service. Nor can we, with any de
, qualified electorship was not con- gree of logical force, exclude womsidered as being attributable to en from this class upon the basis women. But time has wrought the established by Blackstone, propter unanticipated change, and by defectum sexus, because we have amendment to our Constitution eliminated the spirit of this term women have been clothed with the from our consideration of womanqualification of electorship, and by kind in modern political and legal
this change the fe- life. Woman's sphere under the Grand juryeligibility of male citizens of the
common law was a circumscribed state have automat- one. By modern law and custom she ically become members of the class has demanded and taken a place in from which class alone grand jurors modern institutions as a factor may be drawn, and which classifica- equal to man. She may own and ention, as established by the organic joy property, on which she may be law, constitutes the only circum- taxed for maintenance of governscription defining, limiting, and fix- ment. She may enjoy equal educaing the citizenry from which grand tional rights and privileges. She jurors might be, in the first in- may exercise the right of citizenstance, selected.
ship, and cast her vote for public Blackstone tells us that the term servants. She may be an elector, , "homo," though applicable to both or she may be elected to public ofsexes, was not regarded in the com- fice of honor, trust, and responsimon law, applicable to the selection bility. The grand jury, whatever of grand jurors, as embracing the its ancient functions may have been,
(- Nev. - 174 Pac. 706.) has, under modern law, become an a comptroller, a surveyor general, institution endowed largely with in- and an attorney general shall be quisitorial powers. Not only does elected at the same time and places it have to do with criminal investi- and in the same manner as the govgations, but by statutory provision ernor.
Any elector shall it may inquire into the affairs, con- be eligible to either of said offices.” duct, and regulation of public of- Section 3 of article 15 of our Confices, boards, and commissions. The stitution provides: “No person shall public health and public welfare, as be eligible to any office, who is not well as the moral atmosphere of a a qualified elector under this Concommunity, are matters of proper stitution. inquiry for our modern grand jury. Section 1 of article 18 provides : Can we reasonably say that al- “The rights of suffrage and office though woman, on whom has been holding shall not be withheld from conferred the right of electorship, any male citizen of the United the right to enjoy public office, the States by reason of his color or right to own and control property, previous condition of servitude." and on whom has been imposed the It will be noted that the last-menburden of taxation in a common tioned section specifically puts office equality with men, is nevertheless holding in the masculine. Shall it deprived of the privilege of sitting be said that, notwithstanding the as a member of an inquisitorial amendment to our Constitution body, the power, scope of inquiry, which gives to woman the right of and significance of which affect suffrage and electorship, these lastevery department of life in which mentioned sections of the organic she, as a citizen and elector, is in- law would have to be amended to terested, and of which she is a com- entitle woman to the right of office ponent part? The spirit of the con- holding in this state? It is said, by stitutional amendment silences such way of argument, that when our an assertion.
constitutional convention incorpoIt was the grand jury system as rated the section providing for the an institution that we adopted from grand jury system in this state it the common law, but in adopting implied that members of that body this institution we specifically should be males. The same arguchanged the qualification of the ment might, with the same degree class from which grand jurors of consistency, be put forth in furshould be selected. Had we adopted therance of the assertion that when the institution without designating the framers of our Constitution or making mention of the quali- adopted the sections last named, fications of grand jurors, then, in- none but males being then eligible deed, it might with some force be to electorship, they impliedly deargued that in adopting the institu- clared that none but males should tion we adopted it in its entirety, as enjoy the right to hold the several it existed at common law. Section offices established. Such a conten5 of article 4 of our Constitution tion would scarcely gain the sancprovides: "Senators and members tion of reason, nor would such be of the assembly, shall be duly quali- supported by the rules of statutory fied electors in the respective coun- or constitutional construction of ties and districts which they repre- which we are familiar. sent," etc.
Qualified electorship is the priSection 3 of article 5 of the Con- mary basis of the right to hold pubstitution provides :
lic office. Qualified electorship is shall be eligible to the office of gov- the primary basis of the right or ernor, who is not a qualified elect- duty of jury service. It is conceded or," etc.
that by the amendment to our ConSection 19 of article 5 provides: stitution entitling women to the “A secretary of state, a treasurer, right of electorship the sections of the Constitution which make elec- different from that which confronts torship the basis to office holding us here. There a Code provision were impliedly amended so as to ($ 2078) was before the court, make women equally eligible. This wherein it was declared : “All qualican only be true because qualified fied electors shall be competent to electorship impliedly carried with it serve as petit jurors, and all qualithe right and privilege of the enjoy- fied electors and householders shall ment of public office. But qualified be competent to serve as grand electorship carries with it the right, jurors." privilege, and duty of jury service, The decisions of the Washington and the rule which injects the force court did not turn on the question of the constitutional amendment in- of qualified electorship, because at to the sections of the Constitution that time (1884-1887) women did making none but qualified electors not possess the right of electorship eligible to office must, with equal under the Washington laws. Both force, affect that provision of the of the decisions mentioned rather Constitution making none but quali- turned on the question of the qualified electors eligible to jury duty. fication of a married woman to It is not a certain class of quali- serve as a juror under the language fied electors who are eligible to jury of the Washington Code, providing duty, but all qualified electors. that householders should be com
While it may be of minor signifi- petent for such service. No such cance, it is, we think, worthy of note question confronts us here. The that the legislature of this state has sole qualification for grand jurors regarded women as being subject to made by our Constitution and by jury duty, and in an amendment to the laws enacted thereunder is the jury laws providing for addi- qualified electorship, and we can do tional exemption from jury duty, naught else than conclude that, in passed by the legislature of 1915, view of the fact that women, hayand approved on March 6th of that ing been enfranchised by the amendyear, we find it specifically provided ment to our Constitution, may
, that married women may claim ex
therefore become qualified electors, emption from jury service. Sess. as such they are privileged to and Acts 1915, p. 84; Sess. Acts 1917, p.
subject to jury duty. 32.
We take guidance from the deciWe note the decision of the su
sions of this court in the cases of preme court of Washington terri
State v. McClear, 11 Nev. 39, and
State v. Hartley, 22 Nev. 342, 28 tory in the case of Harland v. Territory, 3 Wash. Terr. 131, 13 Pac.
L.R.A. 33, 40 Pac. 372, because of 453. In the last-mentioned case the
the profound learning there disdecision of the majority of the su
played by our eminent predecessors;
but if these cases furnish any light preme court of Washington in the case of Rosencrantz v. Territory, 2
on the question at bar, such only Wash. Terr. 267, 5 Pac. 305, was
serves to illuminate the position
which we take. In neither of these overruled by a divided court. In the Rosencrantz Case, Judge Tur
cases is there a single assertion dener, who wrote the opinion in the
cisive of the one question presented Harland Case, dissented, and, the
in this phase of the case. Not only personnel of the court having
is the adoption of the grand jury changed in the interim, his dissent system from the common law recoging opinion became the prevailing nized and conceded in our views, but opinion in the Harland Case. Nei- we concur in the views expressed in ther the reasoning of Judge Tur
both the McClear and Hartley Casner's opinion nor the rule in that es, and would cite them approvingcase is of assistance to us here. In ly in support of our position. deed, the question determined in A second contention is made by both of the latter cases was entirely petitioner here upon which relief