In the second section of the act incorporating the Wilmington Steam Fire Engine Company (Private Laws 1868-'69, ch. 55) it is provided that the members of it "shall during membership be exempt from all jury and militia duty," and by a subsequent act (Private Laws 1869-'70) it is provided "that the members of all organized fire companies in the city of Wilmington be and they are hereby exempt from serving as jurors on any coroner's inquest, or in the Special or Superior Court."
The defendant was summoned as a tales juror in the Superior Court, and refusing to answer was fined by the Court, nisi; and in answer to a notice to show cause why the judgment should not be made absolute he exhibited to the Court his certificate of membership in the Wilmington Steam Fire Engine Company, and by virtue of it claimed exemption from jury duty under the acts which have been (661) recited. It was conceded that he was admitted as a member because of having subscribed to the organization of the company, and that it was understood that he and others so subscribing should not be called upon for active duty, and that in fact he was not required to attend the meetings of the company. His Honor being of opinion that defendant was not exempt from duty as tales juror, ordered that the judgment be made absolute, and the defendant appealed. It is not material to inquire whether the defendant was such a fireman as the acts contemplated to be excused; for admitting that he was a regular member in *Page 492 all respects, we are of opinion that he was not exempt from service as a tales juror.
There have been three decisions bearing upon the case in our State:
The first was the S. v. Hogg, 6 N.C. 319. There, a commissioner of navigation was exempted from serving on juries by an act of the Legislature of 1807. He was summoned as a tales juror, and refusing to attend, was fined. Upon appeal to the Supreme Court the judgment below was affirmed on the ground that the act did not extend to tales jurors.
The next was the S. v. Williams, 18 N.C. 372. There, an act of Congress of 1825 exempted postmasters from serving on juries; it was held upon appeal from a judgment fining one for refusing to attend as a juror on the regular panel, that he was excused by the act; but it was held, also, arguendo, that such decision would not apply to a postmaster who should be called as a bystander to make up a jury, because the fact of his being a bystander furnishes a presumption that the duties of his office leave him at leasure [leisure] to perform those duties which (662) he owes the State — to aid her in the administration of justice.
The last case is S. v. Whitford, 34 N.C. 99. There the defendant was summoned to serve as a juror on a special venire. He attempted to excuse himself by showing that he was a member of an incorporated fire company in the town of New Berne, and that the act of assembly provided that "the members of the aforesaid fire company, while they continue to act as such, shall be exempt from serving as jurors, either in the County or Superior Courts"; it was held by the Court that the defendant was excused from serving on the special venire; but the decision was put upon the ground of the distinction between tales jurors whose duties only last for the day they are summoned and a special venire which is bound like the regular panel, to attend from day to day until discharged by the Court.
The reason why these acts are held not to extend to tales jurors, is assigned to be, that these exemptions are not intended as privileges or compensations to the party, unless so expressed in the act. So far as serving on a jury does not interfere with their public avocations they are still liable to be called on for that service. "And it is because a talesman must be taken from the bystanders at the Court that he may be summoned, as his being a bystander proves that he was not there on official or professional duties which required his attention." Relying upon these authorities and the reasonableness of the proposition they maintain, we think the defendant was not excused as a tales juror.
Affirmed.
Cited: S. v. Cantwell, 142 N.C. 614.
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