
    Hamann, Sheriff, v. Heekin.
    
      Contributing members of military organizations—Section 5210, General Code—Provision of Section 5211, exempting same from jury service, void—Constitutional law.
    
    Because of the unequal terms upon which Section 5210, General Code, authorizes persons to become contributing members of the military organizations of the state the provision of Section 5211 to exempt such members from service as jurors is void.
    (No. 13291
    Decided June 10, 1913.)
    Error to the Circuit Court of Hamilton county.
    By the judgment under review the circuit court affirmed a judgment of the court of insolvency by which Heekin was released from the custody of the sheriff on a oetition in habeas corpus. His petition was submitted on an agreed statement of facts:
    “The parties hereto represent that a dispute exists between them respecting the authority of the common pleas court to restrain one James J. Heekin of his liberty for an alleged contempt of said court by the refusal of the said James J. Heekin to serve as a petit juror in said court; and do mutually agree upon the following statement of facts relating to said controversy:
    “It is mutually agreed that on or about the 18th day of October, 1909, James J. Heekin was enrolled as contributing member of Company T/ First Infantry Ohio National Guard, which company is stationed in the city of Cincinnati, county of Hamilton and state of Ohio. At the same time there was issued to him a written instrument certifying as to his membership. The said James J. Heekin was enrolled a contributing member as aforesaid upon his paying the sum of ten ($10) dollars to the treasurer of said company and no other act, or agreement, was done, or promised by said James J. Heekin or obligation required of him in connection with said enrollment, and no services, duties or obligations were, or are, imposed upon him as such contributing member, either by the rules and regulations of said Ohio National Guard, or by the council of administration or officers of said Company T.’
    “It is further mutually agreed that on or about the 23rd day of March, 1910, the said James J. Heekin was duly summoned to appear before the Honorable John G. O’Connell, judge of the common pleas court of Hamilton county, Ohio, to serve as a petit juror, having been theretofore selected and his name certified by the jury commissioners of Hamilton county, Ohio, and his name drawn from the jury wheel as provided by laws thereunto pertaining. On or about the fourth day of April, 1910, and in compliance with said summons, he appeared before said judge and, presenting his certificate as a contributing member of said company and claiming to be exempt from jury service by virtue of the provisions of Section 3055, Revised Statutes of Ohio, refused to serve as a petit juror. Whereupon the said court declared said James J. Heekin to be in contempt and remanded him to the custody of the sheriff of Hamilton county, Ohio.
    . “It is further mutually agreed that the said James J. Heekin was immediately taken into the custody of said. sheriff; that on or about the 5th day of April, 1910, the said James J. Heekin! filed an application for a writ of habeas corpus in the insolvency court of Hamilton county, Ohio, and that on or about the 13th day of April, 1910, a writ was issued by the Honorable Almon M. Warner, judge of said insolvency court, -to Oliver P. Coe, coroner of Hamilton county, Ohio, which writ was duly returned on or about the 22d day of April, 1910.
    “And this was all the evidence and all the facts stated in the trial of this cause.”
    
      Mr. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for plaintiff in error.
    The act grants special privileges and immunities, ' and is unequal in its operation. State v. Coulter, Wright, 424; State v. Gardner, 58 Ohio St., 610; Driggs v. State, 52 Ohio St., 51; Platt v. Craig et al., 66 Ohio St., 80; Gentsch v. State, 71 Ohio St., 164; State, ex rel., v. Spellmire, 67 Ohio St., 86.
    The act does not operate uniformly on the class of contributing members. Such members in one part of the state may be subject to larger or smaller dues and contributions and radically different-services from those in another part of the state.
    An enlistment is not merely a contract, but is the creation of a status. In re Grimley, 137 U. S., 151; In re Morrissey, 137 U. S., 159; In re Disinger, 12 Ohio St., 258.
    
      ■ Contributing members enter into a status, and the duties cannot be left to the designation of local individuals or boards without destroying the uniformity of operation required by Section 26, Article II, Constitution. State v. Gardner, supra.
    
    The act is unconstitutional as a delegation of legislative power. It gives to the council of administration the power to determine and make the law applicable to and enforceable upon persons within that status. C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 87.
    ■ Mr. Walter W. Schwaab, for defendant in error.
    The act has uniform operation throughout the state and does not grant special privileges and immunities. Jarvis v. State, 138 Ala., 17; Hall v. Burlingame, 88 Mich., 438.
    It is for the legislature to determine of what number the active militia shall consist, and it may fix any number that it may see fit. Dunne v. People, 94 Ill., 136; Bragg v. People, 78 Ill., 330; State v. Cohn, 9 Nev., 179; McGunnegle v. State, 6 Mo., 367.
    The act has uniform operation throughout the entire active militia, including contributing members.
    An enlistment does not create a status and is merely a contract, and when certain duties are required of a contributing member by the council of administration, they are merely contracting with each ther,- - which is valid and binding. In re Disinger, 12 Ohio St., 256; Commonwealth v. 
      Fox, 7 P. St., 339; In re Carlton, 7 Cow. (N. Y.), 471.
    An enlistment is only a contract/'and when1 filtered into by a minor is voidable. United States v. Hanchett, 18 Fed. Rep., 26; In re Baker, 23 Fed. Rep., 30; In re Davison, 21 Fed. Rep., 618; In re McNulty, 2 Low. (U. S.), 270; In re Wall, 8 Fed. Rep., 85.
    No legislative power is delegated. Stoutenburgh v. Hennick, 129 U. S., 147.
    
   Shauck, C. J.

Counsel agree réspectirig' the soundness and pertinence of the . proposition,, so often decided by this court in the cas fs cited in the briefs and in many others, that our constitution ordains absolute equality of right, and. opportunity and that all,laws must, to be valid, operate equally upon all persons of the' same class:, The point of difference between counsel, arid between the common pleas court by which.Heekiri was 'committed as for contempt, and the insolvency coifrt which ordered his release,. is whether .that 'admitted rule of equality is violated by, . the, .provisions of the statute under whose favdr Heelcin claimed immunity from service as a. ju,ror.’ Those provisions are found in Sections 5210 arid 5211, General Code. The former section provides" that commanding officers of companies, etc., may., in time of peace enlist contributing members' not to exceed one hundred and fifty and that , “such mem-! bers shall be subject to such contributions, dues and services as may be ordered by the council .of administration of the respective organizations; but the dues of such members shall not be less thán five dollars each per annum.” The latter section provides that the commanding officer shall file with the clerk of the court of the county in which such company is located, a certified list of the officers and enlisted men, and provides that the enlisted men and contributing members for the ensuing year or until discharged shall be exempt from labor on the public highways and service as jurors. .

Counsel for the defendant in error cites reported cases in other states which are said to. fully justify the conclusion that this statute is a valid enactment and consequently that it authorized Heekin’s claimed immunity from obligation to serve as a juror and rendered void the order of his commitment as for a contempt. But, if we assume the complete identity of the constitutional provisions involved, differences in the provisions of the statutes •will plainly distinguish this from most of the cases cited. Active members of the guard or militia are subject to the orders of their officers and they are enlisted for the same service, and statutes providing for their exemption from duty as jurors in consideration of such service obviously operate equally upon all who are affected by them, since the immunity is in all cases upon the same conditions.

But Heekin was not an active member of any military organization. His immunity from service as a juror was claimed on the ground alone that he was enrolled as a contributing member of Company I, First Infantry, such enrollment being upon the payment, of ten dollars and without the performance of any other duty or the payment or the promise to pay any other sum. The sum so paid by Heekin for the claimed immunity from service as a juror was not fixed by any provision of the statute operating alike upon other contributing members, the terms of the statute fixing only the minimum limit of five dollars. The terms of the statute make it entirely clear that the attempt of the legislature to afford the immunity contemplated was not upon equal conditions either as to military service or as to the amount of money to be contributed. It is true that in one of the cases cited by counsel for the defendant in error, Hall v. Burlingame, 88 Mich., 438, it was held that immunity from service as a juror was effectively conferred upon a contributing member of a military organization. It is not entirely clear from the report that all of the constitutional and statutory provisions were identical with those which are presented here. But it is clear that the reasoning' of the court in that case would not justify an affirmance of the judgment which we are considering. That conclusion seems to have been placed upon the propositions that it is the duty of the legislature to provide for the organization of the military power of the state, to establish the qualifications of jurors, and to provide who may be exempt. All of these propositions are permissible in this state, but the organization of the. militia contemplated by the express provisions of our constitution requires that the duty whether of service or of commutation shall rest equally upon all citizens of the same class. This case does not in any respect involve the qualifications of a juror but only the immunity from jury service of oue.whos.9-:qualifications are admitted. While,the power of the .general assembly to. determine' whd may : be.-.exempt .from such- service is not doubted, the exemption must be by laws of equal operation as to the conditions of exemption. The very terms of-! the statute ' in question show that no such equality :of cotiditidns, is .prescribed.

• ••It; is .not at all!material' in the present inquiry that, the statute under which the defendant claims immunity has been acquiesced in for many years. As. said by Judge Cooley, Const. Limitations, 85, 86 r “Acquiescence for no length of time can legalize! :a-.clear usurpation of powers where the people have plainly expressed their will and the constitution has appointed judicial tribunals to enforce it.”

The judgment will be reversed and the petitioner remanded to the 'custody of the sheriff.

Reversed.

: Johnson, Donahue, Wanamaker, Newman and Wilkin,. JJ., concur.  