State v. Bolln

70 P. 1, 10 Wyo. 439, 1902 Wyo. LEXIS 22

• Court: Wyoming Supreme Court
• Decided: September 12, 1902
• Status: Published

Opinion

Corn, Justice.

(After stating the reserved questions.)

At the May term of the District Court of Laramie County the court ordered that a jury be drawn for the trial of causes, and twenty-four jurymen were accordingly drawn in the manner prescribed by law to constitute the panel for the term. On the same day the prosecuting attorney for the county presented to the court a motion, supported by his own aL fidavit, to quash and set aside the jury list for the year and to declare void said list and all lists selected under the statutes of the State relating to the matter of selecting jury lists, and the drawing and impaneling of juries, and to issue an open venire for jurors for the term. And, upon the further motion of the prosecuting attorney, the District Court certified the foregoing, as important and difficult questions, to this cyurt for its decision.

By the statutes it is made the duty of the assessor to ascertain from each male person assessed his age, residence, 0C7 cupation, his ability to read and write the English language, his ctizenship and other matters touching his qualifications as a juryman, and enter the same opposite his name upon the assessment roll. It is made the duty of the chairman of the Board of County Commissioners, the County Treasurer and the County Clerk to meet on the second Monday in January, or as soon thereafter as practicable, and select'and make a list from the last assessment roll of the names of all persons whom.they believe to be competent and qualified to serve as trial jurors. This list is to be signed by those officers and delivered to the Clerk of the District Court and filed by him in his office. The clerk is then required to write each name contained in the list upon a suitable ballot and deposit the ballots in a box prepared for the purpose. This, by our jury law, is. denominated “jury box number one.” From this box the regular panel of jurors for any term is drawn. Four other boxes are also provided for by the statute. Box number two contains the names of those who have attended and served as jurymen, and they are deposited therein after the adjournment of the term or session at which.they served. In box number three are required to be deposited duplicate ballots, bearing the names of all persons on the jury list who reside within five miles of the city or town where the term is held. From this box, if at any time after the original panel has appeared in court it shall appear that enough trial jurors are not in attendance, are to be drawn the necessary names to complete the panel. Box number four contains the names of the twenty-four jurymen who constitute the panel for the term, and box number five the names of'the jurymen sworn in a particular cause.

It is contended by counsel who are resisting the motions that the questions certified are not properly before this court for its decison, for the reason, substantially, that they have not actually arisen in any action or proceeding pending in the District Court within the meaning of the statute providing for the reservation of questions for decision by the Supreme Court. And, bearing in mind that the jurisdiction of this court is appellate only as to all the matters involved, we think it will clearly appear that, as to some of the questions, this court is without jurisdiction. But Section 3350 of the Revised Statutes provides that, whenever the business of the District Court requires .tire attendance of a- jury for the trial of cases and none is in attendance, the court may make an order directing a trial jury to be drawn and summoned. This emergency had arisen, and it became the duty of the court to direct the drawing of a jury from box number one, and, in making that order, it became necessary for the court to inquire and determine whether the box contained a legal list of jurymen from which the drawing could be made. And while the motion of the prosecuting attorney appears by the record to have been presented after the drawing was completed, yet it was on the same day and, we think, must reasonably be deemed a part of the same proceeding.

In Michigan a trial court, upon its own motion, had entered an order vacating the jury lists in consequence of the failure of the returning officers to comply with the law prescribing their duty in the premises. It was held that such action was not an improper exercise of the powers of the court, and it was said: “When it appears that, if a jury be drawn, it cannot stand if challenged, it would seem to be a proper thing for the judge to take steps to procure a lawful jury, and that litigants have not a right to insist upon drawing from jury lists, known to be invalid, merely because some party to an action has not raised the question.” (Smaltz v. Boyce, 109 Mich., 382.) And in Louisiana it was said in substance that, if there was an irregularity in the matter of the selection of jurors, upon which directly or remotely were to be based all the findings of the grand juries and all the trials before the petit juries, it was the right and duty of the court to correct it, and it was for the court to determine whether an irregularity existed, and, if so, whether it was serious or trifling, and what remedy should be applied. (State v. Kellogg, 104 La., 580.)

A jury being required, and the motion of the prosecuting officer, attacking the validity of the lists and the constitutionality of the law'providing for the selection of jurors, having been presented, we think that not only was there a proceeding in the court, within the meaning of our statute concerning the reservation of questions, especially as the same motion was filed in a pending criminal case, but that certain questions arose in the proceedings for the present determination of the court. We do not well see how the motions could be ignored. A mere suggestion probably would have been sufficient to authorize the court to consider and determine whether the law under which the lists were returned was valid, and whether the proceedings in the matter of the selection of jurors were such as to enable the court by a compliance with the law to secure a legal jury for the term.

•Whether Section 109, Laws 1901, ever became a valid law, the point presented in the first question, is waived by counsel, being eliminated from the discussion by the fact that it makes no change in the act of 1899 with reference to the drawing of a jury in term time, but merely adds a provision for making the necessary orders and drawing and summoning the jury prior to the meeting of court. The proceeding in this instance was in term, and was fully provided for by the act of 1899, to which it is conceded the objection does not apply. And so with the amendment to Section 3346. It is explanatory simply and makes no change in the proceeding provided for in the original act.

In support of the propositon that the jury box number one did not contain a legal list from which a jury could be drawn, it is alleged in the affidavit accompanying the motion that the assessor did not obtain from persons assessed the information required by statute touching their qualifications for jury service, and that the assessment roll did not have such information set down opposite their names; that, moreover, the officers, whose duty it was to make up the jury list, did not select all persons whom they believed to be qualified, but, upon the contrary, there are in the county about eight hundred persons qualified for jury duty, while only one hundred and ninety-two names were placed on the jury list, and almost all of those from the City of Cheyenne, and within a limit of five miles from it, although nearly one-half of- the persons qualified for jury service resided in portions of the county outside of such five-mile limit.

It was plainly the duty of the assessor to obtain and enter upon the assessment roll the information required by the statute, and for a failure of duty in that respect he was liable to such punishment as may be prescribed by law. But by the great weight of authority and, we think, for the better reasons, such statutes are held to be directory only, and a strict compliance with all their requirements is not essential to the securing of a legal jury list. A construction of them which would permit the incompetency or negligence of a single officer to defeat the object of the law and relegate the courts to a method of procuring juries, which has been found by long experience to be subject to many objections and great abuse, might in many cases work serious injury to the public interests. And the same rule of construction applies also to statutes prescribing the duties of jury commissioners or officers who, ex-officio, act in that capacity. (State v. Beckey, 79 Ia., 370; State v. Carney, 20 Ia., 82; Burlingame v. Same, 18 Wis., 299; State v. Straub, 16 Wash., 111; 12 Ency. Pl. & Pr., 277.)

But, at the same time, under the legislation upon the subject in this State, it is a necessary qualification of a juryman that he must have been assessed upon the last assessment roll of the county, and no authority is conferred upon the jury commissioners to make a jury list except from the assessment roll. It is also necessarily implied in the statute that the jury list shall consist of the names on the assessment roll of all persons whom the commissioners believe to be competent and qualified to serve. And we think a substantial compliance with these requirements is necessary; that is to say, an assessment roll must have been made from which to select, the selection must be made from the names on such roll and must consist of substantially all whom they believe'to be qualified. We do not hold, and there is no> reason for holding, that the mere absence of a name or names from the list which should properly be upon it, or the presence of a name or names not upon the assessment roll, without proof that such errors occurred corruptly, would ■vitiate the list. But no authority is conferred by law upon the officers, whom, for the sake'of convenience, we designate as jury commissioners, to arbitrarily select one hundred or two hundred, or any other designated number of names, and return the same as a jury list under the statute. The presumption is that the officers performed their duty; but if it should be brought to the knowledge of the trial court by adequate proof that they have purposely, either from a mistaken idea ■of their powers and duties, or otherwise, prepared a list substantially different from that required by law, in the respect that it is a mere selection from the names which should legally constitute the list, and that there has been intentionally omitted from it the great mass of the names of those whom they know, or believe to be qualified, such a list would not be a legal jury list. It would be the duty of the trial court to so find, and to refuse to order that a panel for the term be drawn from it. From the very nature of the duties imposed upon the jury commissioners, it is impossible to frame an accurate definition, applicable in all cases, of what would constitute a substantial compliance with the statute. By the terms of the act, they are required to place upon the list only those whom they believe to possess the qualifications of jurymen. This language commits that question to their judgment and decision, and it is no ground for an attack upon a list so made up that others might disagree with them in regard to the qualification of persons whose names appear in the list or of others whose names have been omitted. But it is beyond controversy that an intentional disregard of the statute, by reason of an erroneous interpretation of its provisions, or otherwise, cannot be deemed a substantial compliance with it.

As we have more than once decided, in proceedings of this character, this court has no jurisdiction to weigh evidence or pass upon issues of fact, but only to decide questions.of law. In this case there is before us no finding of fact by the court below, but only an ex parte affidavit of a prosecuting attorney alleging the existence of certain conditions. While the high character of the counsel making the affidavit is persuasive of the accuracy of his informaton upon the subject, it is yet merely persuasive, and the District Court, upon a hearing, may find otherwise. In Kelley v. Rhoads, 7 Wyo., 262, though there was an agreed statement of facts, we held that it was not competent for this court to decide the case, but only to state its decision of the propositions of law involved, and remit the trial and decision of the cause to the District Court.' The .question, therefore, whether the list in question is a legal and valid jury list is not properly before us and is not decided.

But if the District Court shall find, upon an investigation of the matter, that the list is not in substantial compliance with the statute, in the sense indicated in this opinion, it will be its duty to quash the panel of jurors drawn from it and provide for a legal jury, if a jury is required, for the trial of cases at the term.

We have not adverted to the argument upon the technical questions, whether the motion in this case is a proper challenge to the array, and whether such a challenge is permissible under our statute,' for the reason that, in our opinion, when it became necessary for the District Court to draw a panel of jurors for the business of the term, the question then arose whether there was a legal jury list from which it could be drawn, and the motion and affidavit of the prosecuting attorney were sufficient to put the court upon inquiry and call for its determination of the question whether thére was such a substantial departure from the requirements' of the statute in making up the list as would render it illegal. It was incumbent upon the court to act and to provide itselt with the necessary agencies for the dispatch of the business coming before it. Whether it acted upon its own motion or moved by the request or suggestion of some officer or party, interested in the business of the term, we have not deemed very material.

As before stated, if the District Court should determine that this was not a legal jury list and quash the panel, it would then be its duty to provide itself with a jury for the term according to law. And the question presents itself what method is to be adopted in selecting a panel. The motion of the prosecuting attorney concludes with a request that the District Court issue an open venire for • jurors for the term, and the ninth question reserved presents the inquiry whether, under certain conditions, the District Court has the power to issue an open venire. We think the specific question reserved has not arisen in the pending proceeding, and is not before us for decision. But upon others of the questions reserved a construction of the statute becomes necessary, and, in further consideration of the fact that the proper transaction of the business of the various District Courts of the State is dependent, in a measure, upon-, the adoption of a legal and proper procedure in procuring a panel where no jury list has been returned, as required by law, we are perhaps called upon to state the view of this court upon the sub j ect.

By the great weight "of authority the statutes, prescribing the time and manner of performing the duties imposed upon jury commissioners, are held to be directory, and a strict adherence to the statutory requirements is not essential to support the regularity and validity of the proceedings. And the language itself of our statute clearly indicates that the clause fixing the time for making the list is directory. Section 3345 provides that the commissioners shall meet on the second Monday of January of each year for the purpose of making the list; and if they fail to meet on that day they must meet as soon thereafter as practicable. We think it is clearly the legislative intent that if, for any reason, the duty is not discharged at the time designated, they may, and ought to, discharge it afterwards. And we are very clearly of the opinion that where the District Court finds that the duty has not been discharged, either by a failure on the part of the commissioners to meet, or, if having met, they have failed to make the list as required by law, such court may call upon them to meet and prepare and return the list required by statute.

We are aware that the Alabama court has otherwise construed a statute very similar in its terms. (Wells v. The State, 94 Ala., 3.) That court reasons that there was no' failure to meet at the time appointed by statute; that they did meet and did act, but that their action did not conform to the law; that there is no provision authorizing a reassembling of the board, and that their action at any subsequent meeting would be entirely without authority of law. But we think the essential requirement of the statute is not the meeting of the commissioners, but the performance of the duty imposed upon them. Meeting at the time designated, and doing something else than what the law requires, neither discharged their duty nor exhausted their authority under the statute.

In New York the statute provided that the officers “must meet on the first Monday of July * * * for the purpose of making a list of persons to serve as trial jurors. * * * If they fail to meet on the day specified in this section they must meet as soon thereafter as practicable.” The court say: “It is true these officers made an attempt to discharge their duty at the time designated by the code, but they failed to do so; they did not follow the provisions of the statute. As soon as they discovered that they had failed in this regard they again proceeded to discharge their duty under the statute, and we think that they succeeded in doing this by the lists that they made and filed on the nth of December, and that the jurors composing such lists were properly selected, and that they became the jurors of the county at large, from which panels of trial jurors are properly drawn.” (People v. Wennerholm, 166 N. Y., 577.)

In Florida the statute provided “that the Board of County Commissioners, at a meeting to be held the first week in January of each year, or as soon thereafter as practicable, shall select from the list of registered voters in their respective counties and make out a list of three hundred persons properly qualified to serve as jurors.”' It appeared that the list was not made out until the 6th day of July. The court say it was the duty of the County Commissioners to act in such matters at the January meeting, but should they fail to do so, it would be competent for them to make the selection at a subsequent meeting. (Reeves v. State, 29 Fla., 535.)

And, by the general trend of authority, such statutes are not mandatory as to the time when the duty shall be performed. In a Michigan case it was objected that the time of making the lists from which the jurors were drawn varied from the statutory time in almost every instance. Judge Cooley, in delivering the opinion of the court, said: “There is nothing in this reason. The time for returning the lists was of no importance to parties litigant. The statute named a time when it would be convenient to make it, because the supervisor and clerk would then be together on business; but a list made earlier or later would be equally good, for nothing depended upon the time.” (Thomas v. The People, 39 Mich., 310.) And the adjudged cases are generally to this effect. (12 A. & E. Ency. Pl. & Pr., 277.)

Questions 5, 6, .7 and 8 present the inquiry whether the provision authorizing the officers, named as jury commissioners, to select a list of jurors is in violation of Section 10 of the Bill of Rights, securing to the accused in criminal prosecutions the right to a “trial by an impartial jury of the county or district in which the offense is alleged to have been committed;” and, also, whether the provisions for completing the jury panel by drawing from box number three, which contains only the names on the jury list of those who reside within five miles of the city or town where the court is held, is in violation of the same section. It is urged that this court has no jurisdiction to consider and decide the latter question, because, in these proceedings, it has not yet become necessary, and may not become necessary at all, to have recourse to box number three, and that, therefore, it has not arisen within the meaning of the statute. But the question is also asked whether this provision is so involved as a part of the plan of procuring juries under the statute that, if it should be declared unconstitutional, other sections would become inoperative, and the entire method, devised by the Legislature for the purpose, defeated. And we are of the opinion that at least such confusion would result in the procedure that a consideration by us of the constitutional question cannot well be avoided.

It is contended, as we understand, that the constitution guarantees to a person accused of crime a common law jury, and that a common law jury must be selected from jurors coming from all parts of the county; that, therefore, our statute authorizng certain officers to make a jury list containing only the names of persons in the county whom they believe to be competent and qualified is unconstitutional and void; and that the sections providing for jury box number three, which shall contain only the names of those selected who reside within the five-mile limit, and for completing or filling the panel by drawing from that box, are unconstitutional and void for similar reasons.

We think it is well settled that, in order to constitute a jury of the county, or from the body of the county, it is not necessary that the jury, or the list from which it is drawn, should be selected from all parts of the county. Originally in England the King’s courts sat at times and places suited to his convenience and pleasure. The burden to litigants of being compelled to follow the King’s progresses throughout the country had become so great that, under the provisions of 'Magna Charla, the seat of court of common pleas was fixed at Westminster, and assizes were required to be held in the different counties. The jury was originally required to come from the vicinage where the crime was charged to have been committed, but the inconveniences arising by reason of the bias or prejudice of jurymen acquainted with the persons concerned and familiar with the facts of the transaction, became so great that jurors from any part of the county were deemed to be of the vicinage and competent in that respect. And, from all the information we can obtain from the decisions, the right to a trial by a jury of the county, or from the body of the county, was not that the accused was entitled to choose a'jury from all the inhabitants, or all the quailfied jurymen of the county, but the purpose was that he should not be subjected to the evils of being taken to a-distant place for trial, or of being compelled to submit to a trial before a jury composed of residents of another county. (Thompson & Merriam on Juries, Sec. 66; U. S. v. Ayres, 46 Fed., 649.)

As said in a Minnesota case: “The words de corpore comitatus, from the body of the county, of the county, of the vicinage, as they appear in English statutes and in American constitutions and laws, mean no more, as applied to jurors, than that they must come from some part of the given county. Sir Matthew Fíale says that jurors 'are “to be de viceneto, but this is not necessarily required, for they of one side of the county are by law de viceneto to try an offense of the other side of the county.” (State v. Kemp, 34 Minn., 63.)

And we think that the courts generally take substantially the same view of the subject. In New York, there was an act providing for a special jury in counties having a certain population, for the method of selecting such special juries and also creating a special jury commissioner and prescribing his dutes. The claim of counsel was that the act was unconstitutional in not providing that the jury should be drawn from the body of the county. The court say the constitution does not require the placing upon the lists of every qualified juror in the county; that the body of the county is but a generic term applied to the representation of the citizens of the vicinage embodied in the lists of qualified jurors, selected by officers appointed by law. (People v. Dunn, 31 App. Div., 140.) The case was afterwards heard in the court of appeals, and the objection that the- act delegated judicial powers to the special jury commissioner to determine the qualifications of jurors more fully considered. They say that the constitution does not secure to the defendant any particular mode of jury trial, nor any particular method of jury selection; that the constitutonal provision carried no limitation of or restriction upon the legislative power, except as to the right guaranteed, viz., a jury trial in all cases in whch it had been used before the adoption of the constitution. (157 N. Y., 532.) In Louisiana a statute exempted the inhabitants of the parish, residing on the west side of a certain river and bayou, from serving as jurors. It was objected that the act was in violation of the constitution in th^t it deprived the accused of a trial by an impartial jury of the vicinage. The court say it has never been doubted that the Legislature could prescribe the legal qualifications of jurors, and that no good reason can be assigned why they may not exercise the same right as respects territory. (State v. Jones, 8 Robinson, 582.) By the Constitution of the United States it is declared that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” Yet Section 802, U. S. Rev. St., which provides “that jurors shall be returned from such parts of the district, from time to time, as the court shall 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 services,” has been upheld, and the practice of selecting jurors from particular parts of the district, to the exclusion of others, approved. (U. S. v. Stowell, 2 Curt. C. C., 153; State v. Kemp, supra.) So, in the territories, a jury summoned under the territorial laws from only one county in the district has been held to be a jury from the vicinage in the trial of causes arising under the laws of the United States, although the crime is charged to have been committed in another county of the district. (U. S. v. Mays, 1 Idaho, 763.) Authorities upon this proposition might be multiplied indefinitely, if it were deemed necessary.

Moreover, as stated in State v. Kemp, supra, there seems to be no case squarely adjudicating the unconstitutionality of a law or practice in accordance with which a jury for a court possessing county jurisdiction is selected from one or more parts of the county, to the exclusion of the rest. Shaffer v. State, 1 How. (Miss.), 238, is cited, as we understand, in support of the proposition. But it does not seem to have been so regarded by the Supreme Court of that State. For., in a later case, it was objected that the drawing of a special venire from a box containing three hundred and fifty names selected and furnished by the Board of Supervisors, under a statute giving them that power, abridged the constitutional right of the prisoner to “be allowed his chance with all the qualified persons in the county.” The court say this assignment of error is without merit; that the constitution of that State .entitles the accused to a trial by an impartial jury of the county, but it is left to the Legislature to prescribe the qualifications of jurors and to regulate the mode of obtaining a jury of the county; and that the mode provided by the code is free from constitutional objection. No reference is made to the case in 1 Howard. (Cooper v. State, 59 Miss., 267.) Zanone v. State, 97 Tenn., 101, is also relied upon, as we understand, as supporting the proposition that a statute providing for procuring'a jury from a designated portion of the county, to the exclusion of another portion, is in violation of the constitution. But, while there is some reference in the opinion to the constitutional guaranty of the right to a trial by a jury from the body of the county, we think nothing more was decided than that the method adopted for securing a jury in that case was in violation of the law of the State upon the subject. And the court say that the decision in Ellis v. State, 92 Tenn., 85, where it is held that “if the jury is made up of citizens of any part of the county, who are otherwise qualified, the requirement of the constitution is complied with,” has no application to the case. And we think none of the cases cited go further than to decide that a jury obtained in violation of the method prescribed by law is not a legal jury. They are not authority upon the matters under investigation in this inquiry.

Upon the other hand, the cases other than those already referred to are quite numerous which sustain the views we have expressed; among them the following: Gardiner v. People, 6 Park. Cr., 191; U. S. v. Wan Lee, 44 Fed., 707; State v. Arthur, 39 Ia., 631; U. S. v. Chaires, 40 Fed., 820; State v. Stover, 134 Mo., 607; Copp v. Henniker, 55 N. H., 179; Trimble v. State, 2 Greene (Ia.), 404; Colt v. Eves, 12 Conn., 243.

It is also to be observed that a number of states have provisions similar to what is known as the five-mile jury box under our system; as, for instance, Montana, from which our act was taken; New York, which prcfvides that jurors in certain cases shall be taken from the city or town-in which the court is held; and South Carolina, whch has a provision that, under certain circumstances, the panel shall be filled, from jurors residing within seven miles of the town where the court is held. Indeed, the provision in numerous jurisdictions, for filing panels from the bystanders, by no means meets the requirement that the jury shall come from the body of the county, if such requirement is to be construed as insisted upon by the prosecuting attorney in this case. Yet such provisions have never been successfully attacked, so far as we have been able to ascertain.

It is also to be observed that the provisions of the present statute, in the particulars to which objection is made, are not new in the legislation of this State and Territory. By the laws in force, at the revision of 1887, it was made the duty of the Board of Comity Commissioners to select two hundred persons for jury duty, and they were forbidden to choose any who served as jurors at the preceding term of the District Court, and any who appeared from the assessment books, or were otherwise known to be disqualified. And, furthermore, when, by reason of there being no panel, or the panel being incomplete, it became necessary to- draw names from the list, and any person drawn resided at such a great distance from where the court was held that it was deemed impracticable or inconsistent with the public interest to summon him, the court was authorized to direct that he be not summoned, and its finding upon that subject was made conclusive. The purpose of the latter provision was evidently the same as that sought to be accomplished by the “five-mile jury box” of the present law, and its effect was the same in depriving the accused of a trial by a jury drawn from the body of the county in the sense insisted upon by the prosecuting attorney.

With reference to the specific objection that the statute, when it requires the commissioners to make a list of the names of all persons whom they “believe” to be competent, is unconstitutional, because the selection is left to the discretion of those officers and is, therefore, not from the body of the county, not much need be said. The constitution does not point out the method by which jurors shall be selected, and, as. a matter of necessity, it must be provided for by the Legislature if the common law method is to be abandoned. It cannot be claimed that a person accused of crime has any constitutional right to any particular method of selecting a jury. He is entitled only to an impartial jury of the county, and, within those constitutional limitations, the Legislature may define the qualifications of jurors, make such regulations as it may deem wise to determine who are qualified, and provide for their selection and attendance. It is conceded in the argument that if the officers were required to select from the assessment roll the persons possessing the qualifications of jurors there could be no objection to the statute upon this ground. No distinction is possible between the two propositions. Some officer or body of officers must, of necessity, determine the preliminary question who are proper persons to be enrolled upon the list of jurymen, and they can only perform that duty by enrolling those whom they “believe” to possess the qualifications prescribed by law. At the common law the duty was imposed upon the sheriff, and, under any system, some officer or body of officers must he charged with it.

It may be said, in conclusion, that one evident and prominent purpose of the statute is to avoid the evils whch experience has shown to attend, in many cases, the issuance of an open venire. Under the method prescribed, an open venire to complete a trial jury can never issue until not only the panel for the term, but also jury box number three is entirely exhausted. And it would seem that, for completing the panel for the term, an open venire can never issue under any circumstances; for the four first boxes are intended to contain the names of all the qualified jurors of the county. From those boxes the regular panel when incomplete is, at all times, to be filled, and the open venire is thus eliminated from the system.

Recurring to a matter already adverted to in a former part of this extended opinion, the jury commissioners, while officers of the county, elected by the people, are also an aid and agency of the court for the transaction of much of its most important business, and as such are under its direction and control. (In re Brennen, 73 N. Y. Supp., 689; Kennedy v. O. S. L. Ry. Co., 18 Utah, 325.) The District Court is one of general common law jurisdiction, and has inherent power to provide the necessary agencies, such as juries and the like, for transacting its business according to law. (Rockford Ins. Co. v. Nelson, 75 Ill., 552.) And, bearing in mind the evident purpose of the statute to eliminate the open venire from the jury system of the State, we think when it appears to the court that the jury commissioners have failed in the performance of their duty substantially and so as possibly to encumber the execution of the law, according to its spirit and purpose, we are of the opinion that it is in the power of the court to require the commissioners to perform their duty and return a list such as the law requires. If there should be no legal objection to the list returned other than that it is incomplete, there seems to be no. reason why it should be quashed or set aside, but it should be completed to comply with the law.

It will be observed that under the system outlined in the statute the original drawing for the panel for the term is in all cases obtained from the list contained in box number one taken from the entire mass of jurors in the county, and never from the five-mile jury box, thus preserving, out of abundant caution, any possible right of a defendant to a jury fr'om the whole body of jurymen in the county, and the five-mile jury box is only resorted to in completing the panel or in obtaining a jury for the trial of a particular cause.

It is believed that all the questions properly before us for decision have been sufficiently answered. An answer to questions eight and nine becomes unnecessary, for the reason that we hold the sections designated to be valid and not in violation of the constitution.

PoTTRR, C. J., and Knight, J., concur.