
    State v. Kendle.
    
      Jury commissioners — Appointment of by common pleas judges— Constitutional law — Validity of act of April S3, 1894 (91 Ohio Laws, 176).
    
    The act of the general assembly requiring the common pleas judges of the several subdivisions of the common pleas districts of the state, to appoint jury commissioners for the counties in their respective subdivisions, passed April 23, 1894 (91 Ohio Laws, 176), is not in conflict with any of the provisions of the constitution of the state, and is a valid law.
    (Decided February 5, 1895.)
    On exceptions of the prosecuting attorney to the ruling’s of the court of common pleas of Brown county.
    
      David Tarbell, prosecuting attorney, for the state.
    Is the act of the general assembly entitled “An act to provide for the appointment of jury commissioners and the selection of jurors in certain counties and to repeal certain sections therein named,” passed April 23, 1894 (91 Ohio L., 176), in conflict with the constitution of this state, and therefore void?
    Is a grand jury drawn in accordance with this act a legally constituted grand jury?
    It is claimed that the jury commissioners provided for by said act are county officers and that as said act provides for their appointment instead of their election, it is in conflict with sections 1 and 2 of Article X of the constitution, and the case of State ex rel. v. Brennan, 49 Ohio St., 33, is cited to support this claim.
    
      I make no contention upon the proposition that the constitutionality of a law should*be tested by proceedings in quo warranto. Neither do I urge that the jury commissioners that selected the names drawn from the wheel were officers cle facto and that until they are ousted or the office is declared vacant by competent authority they would be deemed officers de ju/re and their acts valid. That the acts of officers de facto as to public and interested third persons are held as valid, upon principles of public policy and justice as if thejr had been done by officers de jure is beyond controversy, yet I do not insist upon the applicability of this principle in this ease, for I believe that it is equally well settled that the acts of an officer de facto are invalid unless he is exercising the functions of a de facto or dejw'e office, and to my mind, to admit that the commissioners of jurors provided for by said act were de facto officers would be to admit the claim that the functions they were exercising were those imposed by a public or de facto county officer. This I do not believe to be sound law,
    My contention is that such jury commissioners are not county officers within the meaning of said section of the constitution, that they are not public officers at all, but are simply officers of the court created and appointed to aid in the administration of justice. They are under the supervision of the court that appoints them. The oath of office prescribed for them in said act. contains the obligation: “I will report to the court the names of any and all persons who in any manner seek by request, hint or suggestion to influence me in the selection of jurors.” Section 5 of said act makes it the duty of each of said commissioners “to report to the said court of common pleas the names of any and all'persons who shall attempt to influence said commissioners, or any of them, in their selection of jurors.” The punishment prescribed for attempting’ to influence said commissioners in the selection of jurors, I take it, is to be imposed by proceedings for contempt as the court would punish any person who would attempt in any manner to corrupt or improperly influence jurors themselves, or officers of the court in the discharge of their duties as such jurors or officers, the difference being’ only that the act fixes a limitation on the punishment.
    Every court of record has- an inherent power to make rules, not in conflict with the constitution or laws, for the transaction of its business, and to appoint subordinate officers as bailiffs, master commissioners or referees. The judge may make out a special venire for a jury and may ordinarily request any person to furnish him with the names of suitable persons for jurors. May not authority be given to the judge, by law, to himself select all the jurors of his court, and may not the law prescribe the manner of their selection by him? Because of such duty imposed upon him could it be said he was holding an additional office? Could not such'authority be given to any other officer of the court whether elected or appointed? Is one who is simply a ministerial officer of a court, as a bailiff, constable or crier, a public officer ? An attorney at law, is so far an officer of the court that it has such a necessary and inherent control over his conduct that it may summarily punish him for offending its dignity, or for wj misconduct that is violative of his professional duty, or in vindicating its honor. But can it be said that he is a county officer, or public officer ? •
    The Supreme Court of Appeals of West Virginia, holds upon the constitutionality of a law similar to this, that jury commissioners are not public officers but officers of the court. State v. Mounts, 14 S. E. Rep., 407; Mechem Pub. Off., section 57.
    In this view the act for the appointment of commissioners of jurors may be clearly distinguished from the act held to be unconstitutional in case of State ex rel. v. Brennan, and the decision stands.
    
      John M. Markley, for the court of common pleas.
    As the question was recentty passed upon by the court of common pleas of Lorain county, and the opinion thereon published and circulated extensively, it may be well to first consider it, for if sound, it will dispose of this case. The court, in that case, said it is not necessary to pass upon the constitutionality of the act, because the commissioners appointed thereunder are officers de facto, if not de jure. Ex parte Strang, 21 Ohio St., 610; State ex rel. v. Smith, 44 Ohio St., 348; Kirker v. Cincinnati, 48 Ohio St., 507.
    In each of the eases above referred to, there existed legally created officers, and the only question raised and decided was that the acts of the defcocto incumbents could not be attacked collaterally, but were valid as against third persons and the public. The law on this question is so well settled that it seems strange that the point should so often have been raised in this state. In this case it is not a question of the acts of de fcocto officers, but the existence of the office itself is challenged. It seems difficult to imagine the existence of an officer either de facto or de jure, without the existence of the office. The State v. City of Camden, 28 Atl. Rep., 82; Norton v. Shelby County, 118 U. S., 435; Mechera on Pub. Officers, sections 326, 327.
    The great weight of authorities, it seems, may be summarized thus: An unconstitutional act, where the defect is apparent on its face, confers no rights and imposes no duties, and it is to be regarded as though it had never been passed; but. an unconstitutional act, where the defect is not apparent on its face, may create a de facto office which will exist until the unconstitutionality of the act is shown by extrinsic facts. It is urged that although that part of the act providing for the appointment of the jury commissioners may be in conflict with the constitution, and, therefore, void, yet that part of the act creating the offices of the jury commissioners, is valid; and the officers, therefore, having been legally created, the authorities cited apply.
    To this argument this answer is made; if it be conceded, or determined, that the jury commissioners are county officers, and therefore elective, then that part of said act creating the offices of jury commissioners is in conflict with section 1, article V of the constitution, in this — that it abridges the right of every elector to vote, or be voted for. State ex rel. v. Constantine, 42 Ohio St., 437.
    The prosecuting attorney in his brief suggests that the constitutionality of the act cannot be tested by plea in abatement, but only by proceedings in the nature of quo wa/rranto. This position certainly is untenable. Thompson v. Watson, Attorney-General, 48 Ohio St., 552.
    
      It is well understood, of course, that the Supreme Court of this state has frequently held that mere irregularities in drawing and selecting grand jurors, afford no ground for sustaining a plea in abatement. But if this act be unconstitutional, and applying the rules laid down in the above cited cases of the State v. City of Camelen and Norton v. Shelby County, it follows that all of the acts of the so-called jury commissioners, were absolutely void; and as said act was the only law in existence providing for the selecting and drawing of a grand jury for the term at which Kendle was indicted, and it being held void it would follow that the defendant, Kendle, was indicted by a body of men assuming to act as a grand jury without any authority of law therefor.
    While the constitution names a grand jury, yet that instrument is, but in a few instances, self-executing. The demurrer to the plea admits all of the facts therein set forth, among others that the defendant did not, and possibly could not have had an opportunity to challenge the array or to interpose any objection to the grand jury being impanneled and sworn. He objected at the first opportunity. State v. Russell, 58 N. W. Rep., 915; section 6760, Revised Statutes; Lawson’s Rights Rem. and Prac., volume 7, section 4040.
    If the act in question is unconstitutional it created no office; therefore, there could be'no usurpation or intrusion. Where the office legally exists but is filled by proceedings under an unconstitutional act there can be no question but that quo xoarranto is the proper remedy.
    The court sustained the plea in abatement on the ground that the act in question is in conflict with sections 1 and 2 of Article X of the constitution. This holding was upon the authority of the State ex rel. v. Brennan, above cited.
    The prosecutor claims that this authority is not in point, for the reason that the jury commissioners, provided for in said act, are not county officers, but are simply officers of the court, like special commissioners, referees, appraisers, receivers and other similar officers; and in support of his proposition he cites the case of State v. Mounts, 14 S. E. Rep., 407. This involves a consideration and comparison of these last two decisions, and, also, of the constitutional provisions of the states, Ohio and West Virginia, relative to this subject.
    Now, the main question is, are the jury commissioners created by the Ohio statutes, officers like receivers, referees, etc., or are they county officers. The jury commissioners do not have to report to the court,’ but the court is bound to accept as jurors, unless disqualified, the persons selected by the jury commissioners.
    As it will be seen, this statute comes within every rule and requirement laid down in the Brennan case; yet, it is a stronger case in this, that the stationer storekeeper’s tenure to his office was at the mere pleasure of the clerk of the court — a tenant at will, so to speak — -while the commissioners of jurors hold their offices for a definite term, without the power of removal therefrom being lodged in any other officer.
    But the prosecuting attorney thinks that' the jury commissioners are under the supervision of the court, because of the form of oath prescribed. Could -not the same oath have been prescribed for township trustees and other officers in their selection of jurors under the old law? However, an oath is not necessary as decided in the Brennan case.
    But, if required, it is only a condition precedent to,the taking of an office. The oath under this statute, it may be said, imposes an obligation independent of the duties for which the office was created. But this obligation is prescribed by law, because the statute prescribes this form of oath, and the only connection with it which a judge may have, is to administer it.
    And right in this connection it is important to consider the fact that almost since the organization of the state the power of selecting the names of jurors has been conferred upon elective officers, such as township trustees and the like, the courts have no inherent power to select jurors. 40 Fed. Rep., 66. The only power to select jurors is given courts by statute, such as special venires to fill up the panels in petit juries. Is not the statute, then, under consideration, an attempt to create new offices and impose upon the incumbents duties which were formerly imposed upon other elective officers ?
    While I believe the above considerations are decisive of the case, yet I further wish to say that I believe the act in question is in conflict with section 26, article II, of the constitution, notwithstanding the decision in the case of McGill v. The State, 34 Ohio St., 228. The opinion of the court, so remarkably divided as it was in that case, is entitled to but little weight.
   Minshall, J.

On April 23, 1894, an act was passed by the general assembly of the state (91 Ohio Laws, L76), providing for the appointment of a jury commission and the selection of juries in all except the following counties of the state, to wit: Cuyahoga, Franklin, Hamilton, Lucas, Montgomery and Mahoning-, each of which, as the act states, has a special act governing the selection of juries. The act requires that on or before the fourth Monday of May of each year, the judges of the court of common pleas in each subdivision of the common pleas districts of the state, shall appoint four judicious freehold electors to be commissioners of jurors in each county for one year. The act excludes all attorneys at law from the commission, and not more than two persons of the same political party are to be selected. After taking an oath to faithfully discharge their duties, and return no one who has directly or indirectly solicited to be returned, or that they believe unfit for the position, or will return a partial verdict; and having been instructed as to their duties under the act by the court, they are required to meet on the fourth Monday of May at the office of the auditor of the county, and select such number of judicious and discreet persons, having the qualifications of electors, as the court may direct. The name of each person so selected is to be written on a separate piece of paper, and placed in a wheel to be previously provided by the county commissioners ; and, having been securely locked, the wheel and the key are to be placed in the custody of the county clerk. From this wheel, in the manner provided in the act, grand and petit juries are to be drawn when directed by the court.

By a grand jury drawn under the provisions of this act, Edward Kendle was indicted for a misdemeanor in Brown county. He filed a plea in abatement setting up the drawing of the jury under the act, and, claiming the act to be unconstitutional, asked to be discharged. The state demurred to the plea, the demurrer was overruled, and the defendant discharged. The prosecuting attorney excepted to the ruling of the court, and brings the question here on a bill of exceptions, for the judgment of this court on the accuracy of the ruling.

1. The first objection to the validity of the act is, that it is a law of a general nature, not uniform in its operation throughout the state, as required by section 26, article II, of the constitution. The act applies to all the counties in the state, except those before named, which are excepted because each has a jury system of its own, provided by law. The validity of the act relating to Cuyahog-a county was questioned on this ground in the case of McGill v. The State, 34 Ohio St., 228; but the objection was overruled and the law held valid. The question was fully and exhaustively discussed by Boynton, J., in delivering the opinion of the court, and we are not now disposed to question the soundness of that decision; and are, therefore, of the opinion that the present act is not invalid on this ground.

2. It is also claimed that the statute is invalid, because it provides for the appointment of the members composing the commission, instead of their election by the electors of the county, as is required in the ease of all county officers by section 2, article 10, of the constitution. This presents a question of more difficulty; for if within the meaning of this section, the commissioners are to be regarded as county officers, they cannot be appointed and the statute is invalid. But in considering the question we are not to forget the rule, that forbids a court from declaring an act of the legislature invalid on the ground that it violates the constitution; to do this the court must he clearly of the opinion that such is the case. As long as it has a reasonable doubt about it, the doubt should be resolved in favor of the law and the judgment of the legislature. The case of State v. Brennan, 49 Ohio St., 33, is relied on. In that case the act, held invalid, created the office of “stationary storekeeper” for Hamilton county, to be filled by the appointment of the clerk of the court of the county. It was a separate and distinct office provided for that county. The power of the legislature to provide for the appointment of persons to act as assistants in an office filled by election has not, and cannot well be questioned. It is on this principle that the appointment of deputy clerks, deputy sheriffs, and so forth, are made and recognized, each of. whom perform many, and in some cases all, the duties of the office in which he acts as deputy. So as to these jury commissioners: They are appointed by the common pleas judges to assist in the administration of justice, as are master commissioners and. court constables. They are but handmaids of the court in the selection of judicious and discreet persons to serve on such juries as are required in the trial of causes, and the presentment of indictments. A similar view was adopted by the Supreme Court of West Virginia, in the case of the State v. Mounts, 36 W. Va., 179, 184. In that case the question arose on the power of the courts to appoint jury -commissioners, conferred by a statute of the state — it not being competent to the legislature, by the constitution of the state, to confer on “any court or judge thereof,” the power of appointing “officers.” “The question here presented, ” say the court, “is, whether the jury commissioners created by the act now under consideration are officers of the state, or whether they are in fact, like jurors themselves, mere officers of the court, such as commissioners in chancery, and in the general sense, attorneys. We think there can be no doubt that such commissioners belong to the latter class, and go to make up a part of the judicial machinery, such as commissioners in chancery, general and special receivers, and other similar officers. Jurors are themselves, in a certain sense, officers of the court; and this special commission is only a legislative device intended to aid the court in selecting them. ’ ’

It is not doubted but that the judg’es mig’ht be authorized to select the jurors to be returned in all cases, as they are in some. As then the duty mig’ht properly be performed by the court, no good reason is perceived, why the court may not be authorized to appoint suitable persons to assist it in .performing the duty, as is done in many similar eases. Habit and custom have much to do with our view of a law. Under the act just repealed, jurors were selected by the township trustees and the couneilmen of the wards. Jurors selected by them were not selected for their respective townships or wards, but were selected for the whole county; and the duties performed by them in this regard were not performed for their respective townships and wards, but for the whole county. They in a sense constituted boards for the selection of jurors for the courts of the county. Still they were not elected by the electors of the county, but by the electors of their respective townships and wards, as they should have been, if those charged with the selection of jurors, are to be regarded as county officers, within the meaning’ of the section of the constitution above referred to.

The majority of the court see no such objections to the validity of the law as would authorize a court to declare it unconstitutional.

The exceptions of the prosecuting attorney are therefore sustained.

Spear and Bradbury, JJ., dissent. •  