Bloom v. State

By the Court.

Lumpkin, J.

delivering the opinion.

[l.j Was the Act of February, 1854, exempting fire Company, No. 1, in the City of Macon, from Jury duty, so long as 'they remained members thereof constitutional ?

We scarcely deem it worth the time to discuss this branch • of the case. While it may not be within the pale of the con- . stitutional competency of the Legislature to be partial in the -imposition of burdens, the converse of this does not follow. It has been the uniform course of the General Assembly, ever ; since the organization of the State Government, to bestow its favors where it listed. It grants relief to one bondsman and refuses it to another; it pardons and it refuses to pardon, as ;seemeth to it good; it allows one man to peddle in certain ■ counties without a license, and refuses it to others. The Di- . gest is full of this species of partial legislation.

Ferry and bridge franchises have been granted to certain individuals time immemorially. Certain persons have been relieved from the disability of not marrying again, being the offending party in divorce cases, while others still labor under the penalty. But I need not enumerate. Establish the principle that all this class of legislation is void, because in derogation of common right, and you will, to a very considerable extent, eviscerate the Statute Book.

And whether it be obnoxious to the further objection of impugning the State Constitution, which declares, that trial by Jury as heretofore practised, shall remain inviolate, it will be time enough to discuss when the exigency may arise; that is, when it shall be made to appear that the criminal justice of the country has failed by reason of these exemptions. The record before us presents no such case.

Does the Act of 1856, declaring who are qualified and liable to-serve as Jurors in criminal cases, repeal the Exemption Act of 1854, which we have just been considering?

The first section declares, that “ all free white male citi.zens who have arrived at the age of twenty-one years, and residents of the county where the trial is to he had, and not being idiots or lunatics, shall be qualified and liable to serve ■as Jurors upon the trial of all criminal cases.” [Pamphlet Acts, p. 229.)

This language is exceedingly broad; and from the fact that the Legislature saw fit to except idiots and lunatics, who were excluded by the general law, it would seem that they -certainly intended to include every body else. It is conceded that the words of the Act are sufficiently comprehensive to Include members of the Macon Pire Company No. 1. It is proposed to take them out, however, upon a familiar rule in the construction of Statutes, namely : that a subsequent affirmative Statute does not repeal a previous special exemption. And the case of King vs. Pugh, [Douglass’ R. 189,) decided in 1779, is the strongest authority relied on in support of that principle. It was there held, that if the inhabitants of a hundred had enjoyed the immemorial privilege from serving on the Jury, they are not liable to be summoned under any of the different Statutes relative to Juries; and the Statutes of 4 and 5 W. & M.; 7 and 8 W. and 8 and 4 Ann, are cited.

We have not the British Statutes at large before us; but against the privilege here set up, the authority of Lord (Joke was cited, who expressly says in his Commentaries upon the Statute of 22 Henry 8, relative to bridges and highways, that the words in the 4th section of that Statute, having given authority to tax every inhabitant, all privileges of exemptions or discharges whatsoever, for contribution for the reparation of decayed bridges, are taken away, although the exemption were by Act of Parliament. (2 Inst. 704.) And Counsel on the other side of that case, admitted that the words of this Statute were much broader and more comprehensive than those of the Acts relative to Juries.

But the Act of 22 'Henry 8, relative to highways and bridges, is not broader nor more comprehensive than the words of the Act of 1856 relative to Jurors. So that, were we left to stand upon this doctrine alone, we might be troubled on account of the universality of the language.

There are other considerations which might be suggested why the Legislature did not intend, notwithstanding the broad terms used in the late law, to repeal all pre-existing exemptions. As early as 1809 Ministers of the Gospel and Justices of the Inferior Court were relieved, at their own option, from serving on Juries. No complaint has been made against this Act, although it has stood on the Statute Book for nearly fifty years. It might be fair to infer that the Legislature did not intend to revoke these privileges.

The exemption granted to volunteer and fire companies began at an early period, and has been constantly practised. It is hardly to be presumed that a species of Legislation so long and perseveringly pursued, would have been swept away by a side blow, and that, too, without creating any sensation.

From these and other considerations, plausible inferences might be deduced against the alleged repeal. And yet, all this would not entirely remove the doubt occasioned by the. universality of the words of the late law. We are greatly gratified, therefore, at being able to settle, without cavil, that it was not the intention of the Legislature to recall, by the recent Act, the previous discharges which had been granted..

By an examination of the Statutes of 1855-’56, it will be found that the instances are broad-cast everywhere in the pamphlet of the like exemptions having been granted by the very Legislature which are supposed to have repealed, by implication, that granted to the Macon Fire Company No. 1.

The general Jury Act was approved February 28, 1850. It will be found that these Exempting Acts begin the 16th-of February, and run on to the 6th of March, before and after the Jury law was passed. One of them bears date the: 27th of February, the day before. To hold, therefore, that the Legislature intended to repeal all these previous exemptions to fire, volunteer and other companies, while they were granting them at the same time to new associations in one-instance, to a whole brigade of volunteers in Augusta, is to-Stultify that body.

But that is not all. As if to remove the last lingering remains of infidelity itself, on the 6th of March, 1856, the Macon Hook and Ladder Company were incorporated “ with the* same rights, privileges and exemptions as are extended to Protection Eire Company, No. 1, in that city.” Here, then,, is an express declaration by the authors of the general Jury Law, made eight days after it is said to have repealed, by implication, the exemption from Jury duty, granted in 1854-to Protection Eire Company, No. 1, declaring this exemption still exists, and is of full force and effect. And Mr. Bloom, the plaintiff in error, being a member of that company, the argument is exhausted and the demonstration complete.

Upon what class of persons, then, it may be asked, does the Act of 1856 operate? By the law of 1799, regulating the liability and qualifications of Jurors in criminal cases, it is enacted, that in addition to their being between the ages of 21 and 60, they must possess the qualifications of voters for the most numerous branch of the Legislature, viz: have been citizens of the county for six months, and paid all taxes required of them for the previous year. This is omitted by the Act of 1856, and persons are qualified to serve on Juries whether they have paid taxes or not, provided they are residents of the county at the time when the cause is tried. It was principally intended, we have no doubt, to dispense with the six month’s previous citizenship that the first section of' this Act was changed, the Legislature wisely concluding that the shorter the residence of the Juror, the greater the probability that his mind would be free from bias or prejudice.. It is a salutary change.

As to the constitutionality of the Act of 1856, it becomes unnecessary to express any opinion upon that point. We have considered it, however, and notwithstanding the able and impassioned argument of our brother Nisbct, we are clear that the charters granted to these fire companies and the exemptions to the members thereof, are not contracts', within the .purview of the- Constitution of the United.. States; and. that not only may these Exemptions be revokEd^by the Legislature, leaving the-member to perform his duty or not as he may see fit, but the charters themselves may be abolished.

We learn from the history of corporations, that a destructive fire, having occurred in Nicomedia, Pliny was induced to.recommend to the Emperor Trajan, the institution for that, city of a fife company of 150 men, (Collegium Fabrorum,), with an assurance that none but those of that business should be admitted into it; and that the privileges granted them should not be extended to any other purpose. But the Empéror, we are told, refused the grant, and observed that societies of that sort had greatly disturbed the peace of the cities, and that they would not fail to be mischievous. (2 Kent, 268.)

No such objection exists here to modern fire companies; but if it be true, that by reason of these exemptions, already-more than five hundred of the best men of the county are withdrawn from Jury duty-, it well becomes the Legislature' to pause at least, if not to retrace their steps.