State Ex Rel. Denson v. Miller , 204 Ala. 234 ( 1920 )

As a preliminary to the filling of jury boxes under the Jury Law of 1909 (Acts 1909, p. 305), section 10 of the law requires that the jury commission "shall make in a well-bound book a roll of every male citizen living in the county, who possesses the qualifications herein prescribed." The names on this roll are required to be written separately on white cards, which are placed in a metal jury box, provided with a lock and two keys, one kept by the president of the commission and the other by a judge of a court of record having juries. The box must be kept in the vault or safe of the probate judge, or, if he has none, in any other safe or vault in the courthouse.

No provision is made for the custody or safe-keeping of the jury roll, and there is nothing in the act itself which either permits or forbids the inspection of the roll by the general public, or by persons who are interested in litigation, present or prospective, which may be the subject of jury trial.

Under the former Jury Law (Code 1907, § 7239), the commission was required to prepare a list of the names of persons selected for jury service, and to file a certified copy of this list, in a sealed envelope, in the office of the probate judge, and that officer was required to "keep such list securely and not allow the seal of the envelope to be broken, or such list to be inspected by any one, save the jury commissioners, unless under an order of the judge of the circuit, city, or criminal court of the county."

Though this statute has been repealed by the act of 1909, it is useful to show the legislative policy then existent of preserving inviolate the secrecy of the jury roll by forbidding its examination, in copy, by any person other than a member of the jury commission, except under a formal judicial order. It seems clear that under the present Jury Law the custody and control of the book containing the jury roll is left with the jury commission. The very nature of the roll, its destined use, and its intimate relation to the jury box itself, would seem to leave no doubt of the conclusion that it is in no sense a public record intended to be exposed, or which can, consistently with sound policy and the procurement of untainted juries, be exposed to inspection, either by the general public or by those who are interested in the personnel of future juries by reason of their interest in pending or anticipated litigation. To know the names upon the jury roll is to know the names within the jury box, and that such knowledge, in the hands of interested and unscrupulous persons, may result in serious evils in the administration of justice by jury trial, is hardly open to doubt.

The jury roll is made and kept exclusively for the use of the jury commission, and no person has a right to inspect and use it for private ends. We are clear in the conclusion that the demurrer to the petition was properly sustained as to this aspect of the relief sought.

It is scarcely necessary to add that the circuit judge may, in the exercise of a sound judicial discretion, require the production of the jury roll to be used as evidence in any proceeding wherein it is relevant to the issues before the court, and in which its inspection and use under the eye of the court, are compatible with the public welfare. See Brewer v. Watson, 61 Ala. 310; Id., 71 Ala. 299, 46 Am. Rep. 323; Phelan v. State, 76 Ala. 49; 1 Greenl. on Ev. (16th Ed.) §§ 476, 477.

While we prefer to base our ruling upon the general considerations above stated, it may be noted also that —

"The ordinary office of the writ of mandamus is to coerce the performance of single acts of specific and imperative duty. The court will not undertake to compel the performance of a series of continuous acts, as it is impossible to furnish that superintendence without which the court's mandate becomes nugatory." State ex rel. City of Mobile v. Board of R. R. Com. Mobile Co., 180 Ala. 489, 61 So. 368.

In its other aspect, viz., to compel the refilling of the jury box in a lawful way, the petition is clearly subject to demurrer for nonjoinder of the other members of the jury commission as parties respondent.

The judgment of the circuit court will be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.