The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-12-13

HN>n vi ilt chsHlbE Atdi, anu tUclculUH luc
Board OF Supervisors must select from the quail
fled citizens of the county-taking Them
nearly as may be from the different wards aud
TOWNSHIPS In proportion to population the num-
be designated by the court.
certified list of these names is given to the
County Clerk, who must wri The names of the
grand jurors on separate pieces OF raper OF uni
form appearance, and having folded them so as
10 conceal The names must deposit Ihem IN Il oox
called the Grand Jury box" And whenever,
during The year, court orders Grand Jury it Is
provided that the Jurors shall be drawn by the
clerk in he presence of the Court lie must
shake the box 30 As TO mix The slips containing
The names before drawing, ana must observe
other slatu'o DRY directions providing against the
unfair drawing OF particular names Tor palticu-
lar purposes. lSccs 24l, 219).
In cities and counties OF more than 100000
inhabitants watch includes san Francisco. the
jurors are selected In January, by the Judges of
The superior Court, Instead of by The Superys-
ors. tSec. 2O4) In all other respects the law is
the same such il the general method provided
by statute for the formation of juries and 1t is
wise a method as could well be devised 10 pro-
cuie falr and Impartial jurors, ana TO prevent
public officers from bringing together certain
persons gu jury in order to secure a certain
result, 10 annoy The innocent or protect The
guilty.
There is, however. another provision OF the
Code, intended evidently for cases OF neglecI of
duty or lnadverienee and TO preveut in some in
stances great delay or expense, on Which the
rlGT OF lie court 10 procure jury As II was pro-
cured ID the case at bar Is based. The thought
would seem to have been directed more particu-
lary 10 trial than 10 grand jurors but II its lan
SUaB6 De Nlut enough 10 grant tit power mere
commended Tor, then lhe power exists. But II the
language DOS not grant such puwer, then it
does not exist, for il is granted nowhere els-.
The sa I'd provision Is contained In Section 226,
and is as follows: wherever Jurors are not
drawn or summoned TO attend any court of rec
oid or session thereof, or sufficient number OF
jurors fan 10 appear, such court may order
SUFFICIENT number 10 be forthwith drawn and
summoned 10 attend the court, or Ii may, by an
ord entered ON the minutes, direct The sheriff.
OF an ellsor appointed by The court, forthwith 10
summon So many good aud lawful men OF the
county, or city and county 10 serve as jurors, as
may be required, and IN either case such Jurors
must be summoned IN the manner provided Ia
The preceding section"
1t Is APPARENT that the claim of power under
the said Section 226 TO do the thing complained
OF in tie case at bar should be closely Sciuti
niZed and denied unless the power be found 10
be clearly given; for, II it exists, 1t is most
arbitrary and dangerous powrr-one that can
easily be used to unjustly destroy character,
liberty OF life. And determining whether or not
there be such leg Il power we must discard aH
consideration OF tn worthIness or uuwOrthl.
ness of the purpose sought TO be attained IN any
IA Ocular case.
GOOD MOTIVES AND PURPOSES.
There must be attributed TO The learned Judge
Of the court below good motives aud purposes;
bur II lie have the power Claimed then such
power must De conceded 10 every other person
who may a any Tine occupy Il similar judicial
| position. Uudtr such power court could easily
| procure the indie ment and perhaps The conylc-
| lion OF any person whom It deemed TO be an OF
| lender, BY SIMPLY appointing person favorable
10 IT. designs, TO select jurors with similar bias
otheI"I>e-a ciIZeh who has incurred cenSute IN
! certain quarters would EaVe scarcely remnant
lett Of hat protection which afforded by fair
tridi before an IMPARTIAL jury; and to say that
| such unlimited power can be safely lodged with
! al. tn men who may happen TO be Judges would
be 10 ignore human history aud the PRINCIPLES OF
| human ia ure. Ii mus; be remembered hat un-
! authorized power may be used for bad as well as
! for good purposes.
/ safety and with cUmplaIsauce upon the barbara
! lumuli oi mob II lie happen 10 be IN -ymrathy
win its present design; bul let The fury OF an
oiuei mop be directed against HIM, OF those
! whom lie knows or believes 10 be Innocent. aud
| lie VIII appreciate al once The value Of legal pro-
! lection. 50, also. lie may look lightly upon the
| Spectacle ut a jury packed FOR the purpose of
prosecuting one whom re believes to be gu llty;
| but II such a course were pursued agJIust HIM
! OF his friends he would nave clrar views OF per
sOuai security and the sacTedn=Ss o. jury iiiaE
! Under the best system that human wIsIum can
| devise an Innocent man VIII, At long interva Is
| be punished and guilty one 60 free; but that a
| government OF law is better than government
| OF unlimited personal power IS principle that
| has been fought out In English and American
history and established aS Il monument of liberty
The asserted power OF the court in the case at
| bar CONS, If II comes al all, from those words
| In the section last quoted, or an elIsor." 1t
| has no other source. The whole force ard stress
! Of The question Involved rest On the word
| "esOr." The language is not that The court
Shall direct the SGerln - or some other person"
or " any qualified cItIZen F" or any other person
over the age OF " (aS IN case OF service of
! mons In civil cases to summon the jury There
! Is no ordinary, general language used which
would have denoied a legislative intent 10 give
the court unlimited dIsci elton uHder any and all
| circumstances, without any showing to choose
| whom yer 1t sledSes 10 pick out a jury. Com
| mon language is discarded aud lie exclusive
! legal word "elisOT "a word used nowhere else
| than In law languages employed What is the
| meaning OF that word? And what was tie egis-
| lallye intent ia using II?
rule Of construction that has always OBJ
| tanned Is APPLY expressed IN Section 16 OF the
! Code of Civil Procedure, as follows: Words
| and phrases are construed according to the con-
! text ana the approved use OF language DuL tech
| meal words aud phrases and such others as
have acguirr d peculiar and appropriate mean
| Ing IN law or are defined in the succeeding sec
| ton a;e to be construed according to such pecu-
| Ilar ana appropriate meaning or definition"
| Now the word ''eli,OT'' has peculiar and APP
| propflate meaning In law" as much as any word
| that can be suggested. Ii is not used at all In
common language No one in private or bust
ness circles would think OF calling ali agent or
trustee an "elt>or." Ii can be found rarely, IL
ever IN general literature.
1t is doubtful If The majority OF meu OF good
intelligence have any notion as TO its meaning
Practically II is known and used alone In law
literature. And IN the Law Its meaning is clear
means now, person appointed to perform
certain duties pertaining TO certain officers
when III latter are di.quallted. He was origin
ally confined to the duty OF returning jury in
the event OF such Disqualification; but In some
States his duties are extended TO The service of
other proeess-buI always only IN the event OF
| the disqualification OF some other officer
REGARDING ELIsoRs.
The provision for such appointment as stated
| in Blackstone Is as follows: Iii the Sheriff bs
not an indifferent person; as II lie be a party TO
the suit OF be related either by blood or affinity
TO either of the parties. he is not then trusted 10
return the jury, but the venire shall be directed
! TO the Coron-rs, who in this, as in many other
| instances are the substitutes Of the Sheriff TO
execute process, when he Is deemed an i'm roper
| person. II any exception lies TO the COrOners
the Yenre shall be directed 10 Two clerks OF the
| eouri, or Two persons OF the county named by
| the Court aud sworn. And these two, who are
called eilS0Ts, or electors, shall indifsrently
| name the jury" etc. % Bia. Comm. 355) In
| BOuvier's Law Dictionary, elisOrs are defined as
persons appointed by the court 10 return jury
| when The Sheriff and Coroner have been email.
| lenged as incompetent" Such is The definition
given in all the dictionaries, and such the sense
10 which tie word Is used in all the lawD0Oks TO
which our attention has ben called; and we do
not understand that counsel for respondent
| claims differently.
Therefore, considering the universal meaning
| given ~ the law generally 10 the WORD "eiisOr,"
| and without considering any other legislative
provision upon the subject in this State it would
| seem clear that when Section 226 gives power
| 10 direct the Sheriff, or eiisOr, TO summon
| Jury, IL uses the word as designating person
10 he appointed In The event that the Sheriff has
been challenged as incompetent" Such con-
! sfruction is not only compelled by the only
known meaning OF the word, but brings tue sec
ton into harmony with all the other sections re.
| latlng TO the selection of iuries. the object of
| which Is clearly to have jurors as far posi-
bic, far and Impartial. The Sheriff is officer
| elected by the people, and usually long before
| he Is called upon TO select jury IL lie should
be secretly partial In any future case IL would be
l
| pointed for such express purpose. And the fact
| that " Coroner" was omitted Inadvertently or
| otherwsc) from Section 226 does not change the
| meaning OF eiisor-who Is essentially one who is
| substitute for Some disqualified officer.
But our statutory law gives the same meaning
| TO "elisor' that Is given 10 IL in the general
| authorities. Ii is provided that, "Wuh rela-
| tion 10 each other, The provisions OF the four
codes must be construed Except as 10 the
| next two sections provided), as though all such
| codes had been passed at tie same moment Of
| time, and were parts OF the same statute" (P.
| u Sec. 44SO) Che next two sections refer TO
| cases oil conflict ana have no application here)
When. heierore. "ellsor' is fused in one code ii
| must be deemed to have been used with refe-
renee 10 It's definition given in another code
| Ihe Political Code, from Sections 4l75 to Al 90
| deals with the duties OF Sheriff aud with pro :
| cess ana notices and their service. 1t refers 10
| both civil and criminal procedure. Section
| 4l76 provides generally that the Sheriff must
| serve all process and notices la the manner
| prescribed by law" Section 4l75 provides that
| process as used In this article includes all
| writs, warrants, summons aud orders OF courts
| OF justice or judicial officers
| Notice includes all papers and orders (except