# Thiel v. Southern Pacific Company/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Frankfurter
United States Supreme Court
328 U.S. 217
Thiel v. Southern Pacific Company
Argued: March 25, 1946. --- Decided: May 20, 1946
Petitioner, a passenger, jumped out of the window of a moving train operated by the respondent, the Southern Pacific Company. He filed a complaint in a California state court to recover damages, alleging that the respondent's agents knew that he was 'out of his normal mind' and should not be accepted as a passenger or else should be guarded and that, having accepted him as a passenger, they left him unguarded and failed to stop the train before he finally fell to the ground. At respondent's request the case was removed to the federal district court at San Francisco on the ground of diversity of citizenship, respondent being a Kentucky corporation. Several vain attempts were then made by the petitioner to obtain a remand of the case to the state court; petitioner was also restrained from attempting to proceed further in the state court.
After demanding a jury trial, petitioner moved to strike out the entire jury panel, alleging inter alia that 'mostly business executives or those having the employer's viewpoint are purposely selected on said panel, thus giving a majority representation to one cla § or occupation and discriminating against other occupations and classes, particularly the employees and those in the poorer classes who constitute, by far, the great majority of citizens eligible for jury service.' Following a hearing at which testimony was taken, the motion was denied. Petitioner then attempted to withdraw his demand for a jury trial but the respondent refused to consent. A jury of twelve was chosen. Petitioner thereupon challenged these jurors upon the same grounds previously urged in relation to the entire jury panel and upon the further ground that six of the twelve jurors were closely affiliated and connected with the respondent. The court denied this challenge. The trial proceeded and the jury returned a verdict for the respondent.
Petitioner renewed his objections in his motion to set aside the verdict or, in the alternative, to grant a new trial. In denying this motion the court orally found that five of the twelve jurors 'belong more closely and intimately with the working man and employee class than they do with any other class' and that they might be expected to be 'sympathetic with the experiences in life, the affairs of life, and with the economic views, of people who belong to the working or employee class.' The Ninth Circuit Court of Appeals affirmed the judgment in its entirety, 149 F.2d 783, and we brought the case here on certiorari 'limited to the question whether petitioner's motion to strike the jury panel was properly denied.' 66 Stat. 472.
The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To desregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.
The choice of the means by which unlawful distinctions and discriminations are to be avoided rests largely in the sound discretion of the trial courts and their officers. This discretion, of course, must be guided by pertinent statutory provisions. So far as federal jurors are concerned, they must be chosen 'without reference to party affiliations,' 28 U.S.C. § 412, 28 U.S.C.A. § 412; and citizens cannot be disqualified 'on account of race, color, or previous condition of servitude,' 28 U.S.C. § 415, 28 U.S.C.A. § 415. In addition, jurors must be returned from such parts of the district as the court may direct 'so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service,' 28 U.S.C. § 413, 28 U.S.C.A. § 413. For the most part, of course, the qualifications and exemptions in regard to federal jurors are to be determined by the laws of the state where the federal court is located, 28 U.S.C. § 411, 28 U.S.C.A. § 411. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208. A state law creating an unlawful qualification, however, is not binding and should not be utilized in selecting federal jurors. See Kie v. United States, C.C., 27 F. 351, 357.
The undisputed evidence in this case demonstrates a failure to abide by the proper rules and principles of jury selection. Both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage. They generally used the city directory as the source of names of prospective jurors. In the words of the clerk, 'If I see in the directory the name of John Jones and it says he is a longshoreman, I do not put his name in, because I have found by experience that that man will not serve as a juror, and I will not get people who will qualify. The minute that a juror is called into court on a venire and says he is working for $10 a day and cannot afford to work for four, the Judge has never made one of those men serve, and so in order to avoid putting names of people in who I know won't become jurors in the court, won't qualify as jurors in this court, I do leave them out. * * * Where I thought the designation indicated that they were day laborers, I mean they were people who were compensated solely when they were working by the day, I leave them out.' The jury commissioner corroborated this testimony, adding that he purposely excluded 'all the iron craft, bricklayers, carpenters, and machinists' because in the past 'those men came into court and offered that (financial hardship) as an excuse, and the judge usually let them go.' The evidence indicated, however, that laborers who were paid weekly or monthly wages were placed on the jury lists, as well as the wives of daily wage earners.
It was further admitted that business men and their wives constituted at least 50% of the jury lists, although both the clerk and the commissioner denied that they consciously chose according to wealth or occupation. Thus the admitted discrimination was limited to those who worked for a daily wage, many of whom might suffer financial loss by serving on juries at the rate of $4 a day and would be excused for that reason.
This exclusion of all those who earn a daily wage cannot be justified by federal or state law. Certainly nothing in the federal statutes warrants such an exclusion. And the California statutes are equally devoid of justification for the practice. Under California law a daily wage earner may be fully competent as a juror. A juror, to be competent, need only be a citizen of the United States over the age of 21, a resident of the state and county for one year preceding selection, possessed of his natural faculties and of ordinary intelligence and not decrepit, and possessed of sufficient knowledge of the English language. California Code of Civil Procedure, § 198. Cf. § 199. Nor is a daily wage earner listed among those exempt from jury service. § 200. And under the state law, 'A juror shall not be excused by a court for slight or trivial causes, or for hardship, or for inconvenience to said juror's business, but only when material injury or destruction to said juror's property or of property entrusted to said juror is threatened * * *.' § 201.
Moreover, the general principles underlying proper jury selection clearly outlaw the exclusion practiced on this instance. Jury competence is not limited to those who earn their livelihood on other than a daily basis. One who is paid $3 a day may be as fully competent as one who is paid $30 a week or $300 a month. In other words, the pay period of a particular individual is completely irrelevant to his eligibility and capacity to serve as a juror. Wage earners, including those who are paid by the day, constitute a very substantial portion of the community, a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system. Were we to sanction an exclusion of this nature we would encourge whatever desires those responsible for the selection of jury panels may have to discriminate against persons of low economic and social status. We would breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged. That we refuse to do.
It is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship. But that fact cannot support the complete exclusion of all daily wage earners regardless of whether there is actual hardship involved. Here there was no effort, no intention, to determine in advance which individual members of the daily wage earning class would suffer an undue hardship by serving on a jury at the rate of $4 a day. All were systematically and automatically excluded. In this connection it should be noted that the mere fact that a person earns more than $4 a day would not serve as an excuse. Jury service is a duty as well as a privilege of citizenship; it is a duly that cannot be shirked on a plea of inconvenience or decreased earning power. Only when the financial embarrassment is such as to impose a real burden and hardship does a valid excuse of this nature appear. Thus a blanket exclusion of all daily wage earners, however well-intentioned and however justified by prior actions of trial judges, must be counted among those tendencies which undermine and weaken the institution of jury trial. 'The the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one, lead to the irretrievable impairment of substantial liberties.' Glasser v. United States, supra, 315 U.S. 86, 62 S.Ct. 472, 86 L.Ed. 680.
If follows that we cannot sanction the method by which the jury panel was formed in this case. The trial court should have granted petitioner's motion to strike the panel. That conclusion requires us to reverse the judgment below in the exercise of our power of supervision over the administration of justice in the federal courts. See McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819. On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class. See Glasser v. United States, supra; Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607; State ex rel. Passer v. County Board, 171 Minn. 177, 213 N.W. 545, 52 A.L.R. 916. It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laborin class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards, to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen.
Reversed.
Mr. Justice JACKSON took no part in the consideration or decision of this case.
Mr. Justice FRANKFURTER, with whom Mr. Justice REED concurs, dissenting.

## Notes

* ↑ The injunction against petitioner proceeding in the state court was affirmed upon appeal. Thiel v. Southern Pacific Co., 9 Cir., 126 F.2d 710; certiorari denied, 316 U.S. 698, 62 S.Ct. 1295, 86 L.Ed. 1767.
* ↑ Federal statutes prohibit the service by any person as a petit juror 'more than one term in a year,' 28 U. .C. § 423, 28 U.S.C.A. § 423, exempt from jury service artificers and workmen employed in the armories and arsenals of the United States, 50 U.S.C. § 57, 50 U.S.C.A. § 57, and set up disqualifications for service as a juryman or talesman 'in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States,' 28 U.S.C. § 426, 28 U.S.C.A. § 426.
* ↑ In the San Francisco-Oakland industrial area in 1939 there were 76,374 wage earners employed by manufacturers out of a total population (as of 1940) of 1,412,686. Sixteenth Census of the United States: 1940, Manufactures 1939, Vol. III, p. 80.
* ↑ See statement of Judge John C. Knox in Hearings before the House Committee on the Judiciary, 79th Cong., 1st Sess., on H.R.3379, H.R.3380 and H.R.3381, Serial No. 3, June 12 and 13, 1945, p. 4. 'When jurors' compensation is limited to $4 per day, and when their periods of service are often protracted, thousands upon thousands of persons simply cannot afford to serve. To require them to do so is nothing less than the imposition upon them of extreme hardship.' Id., p. 8.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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