The record-union., 1891-12-14

the fury of another mob be dlrecfed against
MIN, or those he knows or believes to be
ImhocenI' I,aI and he VIII appreciate at once the
value OF legal protection. So, also, he may
LOOK ngntly upon the spectacle of jury
packed Tor the purpose OF prosecuting one
whom whom ne believes to be guilty; but if such a
course were pursued toward him, or his
Irleud, ne would have clear views of personal
security and the sacredness of a Jury trial
Under the best system that human wisdom
can oeVlse an innocent man will, at long in
IerVals, De punished, and guilty one go free;
but that government OF law is better than
government OF unlimited personal power is a
principle that has been fought out In English
and American history and established as a
monument of liberty.
Inc asserted power Of the court In the case
at BAR comes. If it comes at all from those
words ia the section last quoted, ''or an ELI
sor. 1t has no other source. The whole
1orce and stress of the question involved rest
that the court shall direct the Sheriff 'or
some other person." or ''any qualified citi-
zen," or "any other person over the age Of
eighteen" tas in case ofservice OF summons in
clYli cases. 10 summon the jury. There is no
ordinary, general language used which would
nave denoted a legislative intent TO give the
court unlimited discretion under any and all
circumstances. without any showing, TO
choose whomsoe ever it pl ases topick out jury.
common language is discarded and the ex-
cIuslVely legal word "elisor-a word used no.
Where else than in law language-is employed
Wnat is the meaning of that word? And
what was the legislative intent in using it?
a rule of construction that has always OBJ
tained is aptly expressed in Section l6 Of the
Code OF civil Procedure, as follows ''Words
and phrases are construed according to the
Context and the approved use of language
DIT technical words and phrases, and such
others as have acquired a peculiar and appro-
pirate meaning in law, or are defined in the
succe edlng section, are to be construed accord
ing to such peculiar and appropriate mean
ing or definition" Now the word "elisor"
has a peculiar and appropriate meaning In
law, as much as any word that can be Sug-
gested. 1t is not used at all in common Ian
guage. No one in private or business circles
would think of calling an agent or trustee an
'ellsor." 1t can be found rarely, if ever N
general literature. 1t is doubtful if the major
lty OF men OF good intelligence have any no
t1on as TO its meaning. Practically it is
known and used alone IN law literature. And
IN the law It's meaning is clear and unques.
toned. 1t has always meant, and means
duties pertaining to certain officers when the
latter are disqualified. He was originally con-
lined to the duty of returning a jury in the
event of such disqualification, but in some
States his duties are extended to the service of
other process, but always only in the event of
the disqualification of some other officer The
provision for such appointment as stated in
Blackstone is as follows: "If the Sheriff be not
an indifferent person. as if he be party to the
suit, or be related either by blood or affinity to
either OF the parties, he is not then trusted
to return the jury, but the venire shall be
directed to the Coroners, who in this as
in many other instances, are the substi-
tutes OF the Sheriff to execute process when he
is deemed an improper person. If any excep-
ton lies TO the Coroners, the venire Shall be
directed to two clerks OF the court, or two rer-
sons of the county named by the court and
sworn. And these two, who are called eliSorS
or electors, shall indifferently name the Jury y
etc. (3 Bla. Comm. 355.( In Bouyier's Law
Directory elisors are defined as "persons ap-
pointed by the court to return a iury when
the Sheriff and Coroner have been challenged
as incompetent" Such is the definition given
IN all the dictionaries, and such the sense in
which the word is used in all the law books to
which our attention has been called; and we
do not understand that counsel for res pondent
claims differently.
Therefore, considering the universal mean
ing given in the law generally to the word
'eliSor,' and without considering auy other
legislative provision upon the subject in this
state, it would seem clear that when Section
226 gives power to direct the Sheriff or
elisor, to summon jury, it uses the word as
designating person to be appointed in the
event that the Sheriff has been challenged as
incompetent" Such construction is not only
compelled by the only known meaning OF the
word, but brings the section into harmony
with all the other sections relating to the
selection of juries, the object of which Is
clearly TO have jurors, as far as possible, fair
and impartial The Sheriff is an officer elected
by the people, and usually long before he is
called upon to select jury. II he should be
secretly partial in any future case it would be
an accidental evil; he could not at least be
appointed for such express purpose. And the
fact that Coroner was omitted dnadvert-
n
change the meaning of elisor-who is essen
TALLY one who is substitute for some dis
qualified officer.
But our statutory law gives the same mean
ing To 'ellSor that is given 10 ii In the general
authorities. 1t is provided that, with rela-
ton TO each other, the provisions of the four
codes must be construed except as in the next
two sections proVided), as though all such
codes had been passed at the same moment of
time, and were parts of the same statute"
P. c., Sec. 4,4S0) (The next two sections
T1fa tot =
tion here.l When, therefore, ''elisor'' is sue d
in one code it must be deemed to have been
sued with reference to its definition given in
another code. The Political Code, from Sec
tion ,175 to 4.193, deals with the duties of
Sheriff and with process and notices and their
service. 1t refers to both civil and criminal
procedure. Section 4, 176 provides generally
that the Sheriff must 'serve all process and
notices in the manner prescribed by law
Section Al LIS provides that, sProcess as used
in this article includes all writs, warrants,
and orders OF Courts of Justice or judicial otfi-
GERS. Notice includes all papers and orders
Except process) required to be served In anv
proceeding before any court, board or officer.
or when required by law to be served inde-
pendently OF such proceeding" 1t is impo ssh
bic to imagine any sort of q thing ordered by
a court, or Judge thereof which has to be ex-
ecuted by an officer that is not embraced in
the above definitions; and the general statu-
tory provision is that it must be executed by
the Sheriff. Section 4, ,191 provides. however
that if the Sheriff be a party to an action or
proceeding" the process and orders therein
must be executed by the Coroner. And then,
in Section 4,192, the Office and functions of an
elisor are provided for and described as fol-
lows: Process and orders in an action or pro-
ceeding may be executed by person resid-
ing i'll the county, designated by the court the
Judge thereof, or q County Judge, and de-
nominated an eltsor, in the following cases:
/. When the Sheriff and Coroner are both par
ties. 2. When either of these officers is a party
and the process is against the other; and, 3,
When either of these officers is party and
there is vacancy in the Office of the other or
when it appears by affidavit to the satisfaction
of the court in which the proceeding is pend
ing, or to the Judge thereof, that both of these
officers are disqualified, or by reason of any
bias prejudice, or other cause, would not act
promptly or impartially." The only attempt
10 break the force of this provision is by way
of suggesting that the word proceeding as
used tnerein must be limited to that peculiar
kind of civil remedy which is called in Sec
ton % and in Section ,o63 ct seq &C. C. P.)
q special proceeding" But there is no room
for such construction. The provision In aues-
tion does not say special proceeding. and the
preceding sections and the whole article u
which it occurs refer To both civil and criminal
matters, and use the word .'proct eding" in its
general and well-known sense, which includes
all steps taken and all things done wherein
judicial procedure is instituted or judicial ac-
ton invoked. Even in strictly civil action
when reciting what had occurred in the case
we say, "such proceedings were had" etc
This is the common meaning of the word
proceeding" when applied to things done in
court or before judicial officers. Indeed conn
sci for respondents, in his brief, refers very
naturally TO the formation of Grand Jury as
a proceeding" And so we have statutory
definition and description of '.elisor'' in fi1iI
accord with the meaning that has always been
given it in the general law.
1t is contended that no matter how a BODY
of men may have been gathered together its
acts cannot be attacked if it be recognized by
the court as a Grand Jury''-upon The prin-
ciple sometimes applied to the acts of de facto
public officers. One of the respondents coun-
sci goes so far as to assert that the legal exist
ence of jury can be inquired into only by the
proceeding OF quo warranto; and while other
counsel do not assume that very novel posi-
ton. yet their views logically drift them there
But quo warranto does not lie against a mere
temporary employment like that of a jury: it