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Parus v. District Court

December 31, 1918

ARNE W. PARUS, PETITIONER, V. THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF ELKO, AND E. J. L. TABER, THE JUDGE THEREOF, RESPONDENTS.


James Dysart and Curler & Castle, for Petitioner.

E. P. Carville, District Attorney, Chas. A. Cantwell, Deputy District Attorney, and Edwin E. Caine, for Respondents.

By the Court, McCarran, C. J.:

1. This is a proceeding in prohibition. The petitioner was indicted by the grand jury of Elko County, eleven members of this body who participated in the finding of the indictment being men, the other members being women. As a primary contention, petitioner alleges that the indictment is invalid, because under our constitution and laws women are not eligible to serve as members of a grand jury. Section 8 of article 1 of our constitution provides:

“No person shall be tried for a capital or other infamous crime * * * except on presentment or indictment of the grand jury, or upon information duly filed by a district attorney, or attorney-general of the state.”

It is contended by petitioner, and conceded on behalf of respondent, that at common law women were not qualified to sit on a grand jury, and that this rule obtained up to the time of the adoption of our constitution. Conceding this does not, however, preclude us from inquiring as to the class of persons from whom grand jurors were selected at common law, and further inquiring as to how, if at all, we supplanted this class when we adopted the grand-jury system.

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In Chitty's Treatise on Criminal Law, vol. 1, p. 306, we are told that at common law all persons serving upon the grand jury inquest must be good and lawful men, “by which it is intended,” says the author, “that they must be liege subjects of the king, and neither aliens, nor persons outlawed even in a civil action, attainted of any treason or felony, or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous.” Hence we see that the class of persons from whom grand jurors could be selected at common law was those who were liege subjects of the king. By later statutes, the class from whom grand jurors might be selected was fixed as those possessing certain property or income qualifications in addition to their being liege subjects of the sovereign. Section 27, article 4, of our constitution provides, inter alia:

“Laws shall be made to exclude from serving on juries, all person not qualified electors of this state.”

Section 4929, Rev. Laws, being section 1 of an act entitled “An act concerning juries,” provides:

“Every qualified elector of the state, whether registered or not, who has sufficient knowledge of the English language, and who has not been convicted of treason, felony, or other infamous crime, and who is not rendered incapable by reason of physical or mental infirmity, is a qualified juror of the county in which he resides, or the county to which it is attached for judicial purposes.”

Looking to the creation of a jury list, section 4937, Rev. Laws, provides:

“The board of county commissioners in each county of the State of Nevada, shall, at its first meeting after the approval of this act, and thereafter at its first regular meeting in each year, by an order duly made and entered on its minutes, estimate, as nearly as possible, the number of trial jurors that will be required for attendance on the district court of said county until the next annual selection of trial jurors under this act. The

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said board shall thereupon select from the qualified electors of the county, whether registered or unregistered, not exempt by law from jury duty, such number of qualified electors as it has been estimated to be necessary. The names of the electors so selected shall be entered upon the minutes of said board, together with the occupation and place of residence of each of such electors so selected.”

Section 4931, Rev. Laws, provides:

“It shall be the duty of the district judge and any one of the county commissioners of the county, at least once in each year and as much oftener as the public interest may require, to select from the jury list twenty-four persons who shall be summoned to appear as grand jurors at such time as the judge may order. * * * If from any cause a sufficient number do not appear, or those who appear are excused or discharged, an additional number, sufficient to complete the grand jury, shall be selected from the jury list by the judge and clerk and summoned to appear in court at such time as the court may direct.”

It will be noted that these statutory enactments follow the direction of the constitutional provision. By section 4937 the board of county commissioners are required to select a jury list for the ensuing year, which list shall contain the names of qualified electors only. Section 4931 makes it the duty of the district judge, whether acting with one of the county commissioners or with the clerk of the court, to select the members of the grand jury from this jury list, the names of which have been previously selected by the county commissioners from the qualified electors of the county. Nowhere do the statutory provisions lose sight of the constitutional requisite and direction as to the qualifications of grand jurors, to wit, that they shall be qualified electors. Hence, while it may properly be said that we have taken our grand-jury system from the common law, it must be recognized that the class of persons which the common law declare to be subject to grand-jury duty was,

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at the adoption of our constitution, changed, and in its place was substituted a class defined as “qualified electors.” So, qualified electorship in grand-jury service holds the same place under our organic law as was held by the term “liege subjects of the king” at common law.

Section 1 of article 2 of our constitution as adopted by our constitutional convention provided that:

“Every white male citizen of the United States (not laboring under the disabilities named in this constitution) of the age of twenty-one years and upwards who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote,” etc.

By the amendment of 1877, approved and ratified in 1880, the word “white” appearing before the word “male” was stricken out. We mention this amendment because it becomes significant at a later place in our opinion. This section of our constitution, as it now stands after adoption and ratification, reads as follows:

“All citizens of the United States (not laboring under the disabilities named in this constitution) of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote. * * * There shall be no denial of the elective franchise at any election on account of sex.”

By this last amendment, the right of electorship at any election was accorded to women. Hence any woman of the age of 21 years and upwards, who has actually and not constructively resided in this state six months, and in the district or county thirty days next preceding an election, is a qualified elector, and has the right to vote at any district, county, or state election, providing she has complied with the election laws governing such elections.

It is contended by petitioner that the granting to woman of the right to vote, although the same makes

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her a qualified elector, does not thereby clothe her with the privilege or obligation of grand-jury duty. In other words, it is contended that while by the constitutional amendment women are made qualified electors, this does not of itself make them qualified for grand-jury service.

We think that the contention of petitioner has been answered by the courts in those cases where the same contention was raised following the adoption of the fourteenth and fifteenth amendments to the federal constitution. The enactment of the fourteenth and fifteenth amendments gave citizenship and the privileges of citizenship to persons without regard to race, color, or previous condition of servitude. The adoption of the fourteenth and fifteenth amendments rendered inoperative the provisions in the organic law of the several states whereby the right of suffrage was limited to the white race. The question of the right of members of the colored race to serve as jurors where a statute confined the selection of jurors to persons possessing the qualifications of electors, and where such was limited to the white race, was dealt with by the Supreme Court of the United States in the case of Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567, and in the opinion of that court, rendered by Mr. Justice Harlan, it was held that though no constitutional amendment had been adopted by the State of Delaware conforming to the fifteenth amendment, nevertheless by operation and by force and effect of the federal amendment a statute confining the selection of jurors to persons possessing the qualifications of electors was enlarged in its operation so as to embrace all those who by the constitution of the state, as modified by the federal amendment, were entitled to vote. To the same effect was the case of Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed 664. The question was again dealt with by the Supreme Court of the United States in the case of Bush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. 625, 27 L. Ed. 354.

To the suggestion that in adopting the grand-jury

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system we adopted such system as it was known and as it existed at common law, it may be said, conceding that we adopted the system itself, or rather the principle of the grand-jury system, from the common law, that when we incorporated the system into our laws we departed most emphatically from the lines which established grand-jury qualifications at common law, for under the ancient system, not only must a grand juror have been a liege subject of the king, but the venire facias prescribed that they be liber et legalis homo. Chitty reminds us that the regulation was that they be freemen or freeholders, and later statutes of England fixed a more restricted latitude from the standpoint of property qualifications, thus:

“That every man between the ages of twenty-one and sixty years, residing in any county in England, who shall have in his own name, or in trust for him, within the same county £10 by the year above reprizes, on lands or tenements, whether of freehold, copyhold, or customary tenure, or of ancient demesne, or in rents issuing out of any such lands or tenements, or in such lands, tenements, and rents, taken together, in fee simple, fee tail, or for the life of himself or some other person, or who shall have within the same county £20 by the year above reprizes, in lands or tenements, held by lease or leases, for the absolute term of twenty-one years, or some longer term, or for any term of years determinable on any life or lives, or who, being a householder, shall be rated or assessed to the poor rate, or to the inhabited house duty in the county of Middlesex, on a value not less than £30, or in any other county on a value not less than £20, or who shall occupy a house containing not less than fifteen windows, shall be qualified, and shall be liable to serve on juries for the trial of all issues in the civil and criminal courts, such issues being respectively triable in the county in which every man so qualified respectively shall reside, and shall also be qualified and liable to serve on grand juries, in courts of sessions of

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the peace, and on petty juries, for the trial of all issues joined in such courts of sessions of the peace and triable in the county riding, or division, in which every man so qualified respectively shall reside.”

How far we departed from all of these qualifications as prescribed and recognized at common law may be measured at a glance when by our organic law we expressly declared that the basis of exclusion from service on juries, so far as their primary selection was concerned, was the lack of qualified electorship. Constitution of Nevada, art. 4, sec. 27. It may be urged that at the time of the framing of our organic law, qualified electorship was not considered as being attributable to women. But time has wrought the unanticipated change, and by amendment to our constitution women have been clothed with the qualification of electorship, and by this change the female citizens of the state have automatically become members of the class from which class alone grand jurors may be drawn, and which classification, as established by the organic law, constitutes the only circumscription defining, limiting, and fixing the citizenry from which grand jurors might be in the first instance selected.

Blackstone tells us that the term “homo,” though applicable to both sexes, was not regarded in the common law, applicable to the selection of grand jurors, and embracing the female. Woman, he says, was excluded propter defectum sexus. The right of electorship is by our laws made incident to the right, duty, and privilege of grand-jury service. It is the basis of grand-jury selection. To say that women, after being empowered with the right of electorship, were nevertheless excluded from grand-jury service, would be to say that, although the organic law made electorship the basis of grand-jury service, there was nevertheless within the body of the electorate a class excluded from grand-jury service, the only basis for this exclusion being, as Blackstone puts it, propter defectum sexus. When the people of Nevada approved and ratified the constitutional amendment

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making women qualified electors of the state, it is to be presumed that such ratification carried with it a declaration that the right of electorship thus conferred carried with it all of the rights, duties, privileges, and immunities belonging to electors; and one of the rights, one of the duties, and one of the privileges belonging to this class was declared by the organic law to be grand-jury service. Nor can we with any degree of logical force exclude women from this class upon the basis established by Blackstone, propter defectum sexus, because we have eliminated the spirit of this term from our consideration of womankind in modern political and legal life. Woman's sphere under the common law was a circumscribed one. By modern law and custom she has demanded and taken a place in modern institutions as a factor equal to man. She may own and enjoy property, on which she may be taxed for maintenance of government. She may enjoy equal educational rights and privileges. She may exercise the right of citizenship and cast her vote for public servants. She may be an elector or she may be elected to public office of honor, trust, and responsibility. The grand jury, whatever its ancient functions may have been, has under modern law become an institution endowed largely with inquisitorial powers. Not only does it have to do with criminal investigations, but by statutory provision it may inquire into the affairs, conduct, and regulation of public offices, boards, and commissions. The public health and public welfare, as well as the moral atmosphere of a community, are matters of proper inquiry for our modern grand jury. Can we reasonably say that although woman, on whom has been conferred the right of electorship, the right to enjoy public office, the right to own and control property, and on whom has been imposed the burden of taxation in a common equality with men, is nevertheless deprived of the privilege of sitting as a member of an inquisitorial body, the power, scope of inquiry, and significance of which affects every department of life in which she, as a citizen and elector,

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is interested and of which she is a component part? The spirit of the constitutional amendment ...


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