Harland v. Territory

Langford, J.

(concurring). The record in this case presents for our discussion the following propositions of law: —

1. Gan a prisoner be extradited upon a charge of felony, which is the^carrying on a swindling game of bunko and twenty-one, and he tried and convicted upon the charge of carrying on the game of twenty-one, or top- and-bottom dice, and swindling aman thereat?

2. Can a man be convicted of a felony under an indictment which charges that defendant and another conducted the swindling game of twenty-one, or top-andbottorn dice, without description of the offense by any words other than those naming a game stating no acts-which constitute the offense?

3. Can a prisoner be convicted of any felony under such a charge in the indictment ?

4. If the jury in such a case bring in a verdict of guilty as charged, can the court enter judgment for carrying on the swindling game of top-and-bottom dice, omitting the words “twenty-one”?

5. Gan a prisoner be convicted on any indictment where he has duly challenged the grand jurors upon the-admitted fact that four of them who found the bill were married women, living and keeping house with their husbands ?

As to the first point, we think that each of the states are sovereign as to each other, in all respects, as one foreign nation is to another, save and except in those particulars which each state has surrendered to the United States.

Each state has surrendered its right to make treaties and war to the government of the United States.

If a prisoner is extradited from one state to another,, it is done, not through the terms of treaty, the breach *154■of which is to be punished by war or revolution, but through the comity and pleasure of each state. There can be no power of one state brought against another to force extradition.

This comity of states is exercised with great liberality, and without the jealousy which controls foreign nations as to each other. This comity, by long, custom, has become a quasi international law as between the states.

• The courts of a state will not discharge a prisoner thus extradited except upon the ground of fraud or imposition.

A false pretense that a man is required for one thing, when in truth and in fact he is wanted for quite another thing, is a fraud, and in such a case the court would presume that the executive had been imposed upon, and upon an advantage being attempted as the fruit of such fraud, would discharge the prisoner.

In this case the offense mentioned in the requisition and the indictment are so similar that no presumption ■of fraud can arise. I conclude, therefore, that the prisoner ought not to have been discharged upon this ground.

As to the second point: the statute under which the prisoner was convicted divides illegal games into two ■classes, the first class being misdemeanors, the second felonies.

Among the class of games which are mentioned by name as misdemeanors is the game of twenty-one.

The game of twenty-one is not mentioned among those games which are declared felonies.

Top-and-bottom dice is not mentioned as a game which is either a misdemeanor or a felony.

If the game of twenty-one is to be punishable at all, it being specially mentioned as a misdemeanor, and not a felony, can only be punished as a misdemeanor-, and n conviction of felony is illegal.

The offense is not defined by the statute except by the name of the game. What acts constitute the offense are *155not stated in the statute. I am of the opinion that, when a word has an accepted unambiguous meaning as fixed by the law or by the English language, it is sufficiently definitive of itself without further statutory definition, such as the word “adultery,” or the like; but a word which does not convey a fixed or ascertainable meaning in law or in English is not sufficiently definitive to create a crime. A law is a rule of action prescribed. A word which has no fixed meaning cannot constitute a rule of action, for the connotation is not definite, nor does it prescribe, either to the public or the courts, what acts are or are not criminal. The words “top-and-bottom dice” signify no class of actions which can be known by the public or the courts; besides, that game is not denominated an offense. What neither the courts nor the people can understand was probably not understood by the legislature, and though it intended to use the words, it had no definite idea of their exact meaning.

It requires certain particular acts to constitute a crime. The words used in this statute in no way inform us of .what class of acts there are which constitute “top-and-bottom dice,” nor “twenty-one.” It may or may not he possible that some scientist in gaming might for a proper remuneration interpret the meaning of these words, and what acts it takes to amount to what the words denote. Such evidence, however, might not be reliable, and certainly no provision is made for an interpreter of foreign or slang words; courts cannot take judicial knowledge of the meaning thereof.

For these reasons, the prisoner could not have been legally convicted of an offense under an indictment which charges in such indefinite terms.

3. For the reasons above stated, the indictment does not, as the statute requires, set forth the facts constituting the offense. In truth, it sets forth no special acts *156at all. It does not then set forth facts constituting an offense, and hence cannot sustain a conviction.

4. The jury returned a verdict of guilty of carrying on the swindling game of “twenty-one, or top-and-bottom dice.” The words “twenty-one” may qualify the words “top-and-bottom dice,” or the reverse may be true. The judgment of “guilty” for “top-and-bottom dice” only, though not agreeing with the indictment or verdict, may or may not mean the same thing. This shows, however, that it is a seeming attempt to escape from the words “ twenty-one,” which would only amount to a misdemeanor. If the two terms mean the same thing, then the judgment indicates that the misdemeanor is to be punished as a felony.

This but shows that the prosecutor and court were as ignorant as myself as to the acts which would constitute “twenty-one,” or “top-and-bottom dice.” They were uncertain whether the two terms meant the same acts or a different set of acts. All that can be gathered with any certainty is that the prisoner is guilty of some swindling game by which he cheated a person out of money. By what process this swindle was effected is unknown. There are swindles and cheats at common law which are indictable, and the class is well-known, and the facts constituting the offense may be set out in an indictment, but this is not done in this case.

5. Is a married woman living with her husband a competent grand juror? If she is both an elector and householder, then she is competent. If she lacks either qualification, then'she is not.

First, then, is she an elector ? It is admitted that she is hot an elector unless she is made so by the act of 1883, page 40. This act has no title unless the words and figures following are one, to wit: “An act to amend section 3050 of chapter 380 of the Code of Washington.”

We -have a book which is marked on the fly-leaf, “The Code of Washington.” I have examined it, and, *157find that upon its face it does not purport to contain any authenticated act of the legislative assembly of the territory of Washington. It purports to have been edited and compiled by a private party. It contains no titles to acts, no enacting clause, no signature of president of the council, speaker of the house, or governor. It is not certified by the secretary to be or contain a true copy of any legislative act. The chapters, divisions, and sections all purport to be the act of a private party. His sections run up to 3327, and in the book is an unauthenticated provision that a certain private party shall publish parts of a certain class of laws which he shall deem to be general, and leave out certain parts of all acts, and leave out entirely others. He certifies that he has examined all the laws embraced in the volume (the Code), etc., and put redundant matter in parentheses, and njatters omitted from enrolled laws but supplied by him are inclosed in brackets.

Now, it is clear that this book contains no act passed by the legislative assembly, and it cannot be known officially what it does or does not contain. We suppose that it is this private book that the act of 1883 purports to amend.

Acts of a legislature may amend other acts of its own. An act cannot amend the statutes of the United States or of another state, or the works of a private author.

Such an attempt is simply void, and beyond the legislative power. The organic law of the territory provides that every act of the legislature shall contain but one object, and that shall be expressed in its title.”

If one part of this provision is not complied with, it is admitted an act is void. An act with or without a title might contain one or more than one object equally well.

That there shall be a title to such act, and that the title shall express the object, is entirely distinct from there being but one object in a bill. The last provis*158ion is not peculiar to our territory, but is in the organic laws of many of the states.

Its purpose and object have been decided by many courts. It is stated in late elementary authors. These authorities agree as to the purpose of this organic provision.

The evil it was intended to remedy was this; legislators had departed from the good old custom of having a preamble to each act reciting at some length the general purpose and object of the act which followed. They had departed also from another good old custom of having such bill read at length in the hearing of all the members before they voted upon it.

It had become the fashion to pass acts by merely reading the title. Now, as members only heard the title, it was of the utmost importance that the title should give upon its face the general scope of the proposed act, so that each member might have notice of what measure was before the house for his action.

It was also the fashion of newspapers to publish proposed acts by their titles only. To obtain the surreptitious passage of laws (which if these objects were known would be defeated), titles which gave no notice of what the acts contained were used to pass provisions unknown to the legislature.

This fraudulent practice became a public evil of SO' great a magnitude that constitutional provisions were made to prohibit the practice. It was thus provided that no act should be passed without having a title which expressed its object. So that when a bill was read or published by title only, the title alone could give notice of the general scope of the act.

There would be no use of a title that of itself did not give this notice within itself, for it alone was read. The expression of the object was to give notice of the contents.

The words of a title were in the nature of things brief. *159Much controversy has arisen as to whether the words of the title were broad enough to cover all the provisions of the act, or definite enough to give notice of the contents.

No case has arisen in the courts, nor been commented upon by authors, where the violation of the provision has been so gross as in this case, except it may be a case in the state of New York, and perhaps in another state.

The title of this act does not attempt to give notice of what the act itself contains, or what is the object of it, or what is its subject-matter.

It attempts to make a reference to certain sections of a certain book where the object may be discovered.

By reading the title nothing is known, but by reading the title and then reading the book, a member may find out the object. If this were all that was intended, then a title like this would be better: “An act to provide for certain things which will be found in the body thereof.” This reference would be better, because easier made, for here the reference would be to an act directly under the reference, while by the other it would be much more difficult to find the matter referred to. It is more important that constitutional provisions should be observed than any temporary inconvenience may be suffered, which may be remedied by the next legislature. The act is then void because it has no title expressing its object. The act of 1886 is invalid for the same reason, and hence women are not electors nor qualified grand jurors.

Are married women living with their husbands householders ? A woman who keeps house and controls it, as a widow, or the like, may be a householder. The term has been defined in exemption laws and jury laws frequently, as only including the husband, and not the wife, when they live together as husband and wife. No doubt but that this meaning obtained for the reason that the husband was deemed to have control of the house, his *160wife, and his family. It has ever been used in the statutes of this territory and many others as distinguishing the husband only. There has been no act passed purporting by its title to amend the old section which had the uniform construction that the husband alone is in-eluded. If this section has been modified, it has not been done by any act which by its title or otherwise referred to the subject-matter of the qualification of jurors.

Had the legislature intended to change the qualification of jurors it would seem that they would have signified that intent by amending the act relating to the subject. This they have not done. If it has been changed, it .has been done without any expression of a legislative intent to change it. It has been done incidentally without any reference to the quality of grand jurors.

The incidental acts which have been thought by some to change the old law, that the man is the only head of the family, and make two heads instead of one, are the ■“ married women ” acts, so called.

These acts have existed in nearly their present form since 1869, and no one imagined that the personal relations of husband and wife were changed. It was thought the “ married women ” acts only related to rights of the women to hold and control property, and the like, and nothing more.

The act which is claimed to change the qualification of jurors, passed November 14, 1879, was entitled “An act to establish and protect the rights of married women.” This act has been passed in many other states, and last in the state of Oregon, yet in none has it been construed to make the married women the head of the household, or qualify her to sit on juries.

Even here, where certain property is exempted to each householder, it has not been claimed that the husband as one householder and the wife as another can each and both claim the exemption, and thus double the exemption.

*161Civil disabilities are abolished as to the wife, but if the right to vote is a civil right, it was not abolished by this act. The words “ civil disabilities ” are explained by the context.

For any “usurpation of her natural or property rights she may appeal to the courts,” etc. It was simply intended to give her a status in court to protect her civil rights, i. e., her natural or property rights.

Section 2 makes special provision as to control and ■custody of children, showing that it was not thought that the words “civil disabilities” being removed, and she being permitted to sue for her natural and property rights, included the right to control children.

If, notwithstanding the civil-disability clause and the natural and property right clause, it was necessary to .add another section concerning children, it clearly shows that the legislature thought they intended to give women the equal right to hold property, control children, and the right to sue which her husband had, and nothing more.

No more than this is expressed in the language; not a word about her being lord of the household, or juror, or the like.

If the legislature was so particular to name natural and property rights and right to control children, it is to be presumed that these subjects only were intended to be legislated upon.

Is every man who is disqualified from being a grand juror laboring under a civil disability? If this is so, attorneys, postmasters, physicians, old men, even the judges, are now suffering from civil disability. Read, “A wife shall not be deprived of civil rights,” and you have an equivalent expression to this statute. Jury duty, militia duty, labor on the road duty, etc., were surely never intended to be imposed on her. Perhaps it may be said that she has a right to trial by her peers, and that men are not her peers. This thought never *162occurred until lately, as -women on trial have never challenged jurors on that ground.

Note by Reporter. — The ease decided by the Supreme Court of Wisconsin, and referred to by Mr. Justice Turner in his opinion in the foregoing case (see p. 142, ante), is In re Lavinia Oóodell, 39 Wis. 232, involving the right of a woman to be admitted to practice as an attorney. The following is an extract from the opinion of Mr. Justice Ryan, speaking for the Supreme Court in deciding that case, and which relates to some of the questions discussed by Mr. Justice Turner in his opinion: — “ So we find no statutory authority for the admission of females to the bar of any court of this state. And with all the respect and sympathy for this lady which all men owe to all good women, we cannot regret that we do not. We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well-being of society; and to be honorably filled and safely to society exacts the devotion of life. The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race, and for the custody of the homes of the world and their maintenance in love and honor. 'And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it. The cruel chances of life sometimes baffle both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to their sex and its proprieties, or incosistent with the good order of society. But it is public policy to provide for the sex, not for its superfluous members, and not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours. There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife. Nature has tempered woman as little for the juridical conflicts of the court-room as for the physical conflicts of the battle-field. Womanhood is molded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice, —all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, libel and slander of sex, impotence, divorce; all the nameless catalogue of indecencies, la chronigue scandaleuse of all the vices and all the infirmities of all society, with which the profession has to deal, and which go towards filling judicial reports which must be read for accurate knowledge of the law. This is bad enough for men. We hold in too high reverence the sex without which, as is truly and beautifully written, le commencement de la vie est sans secours, le milieu sans plaisir, et Xefin sans consolation, voluntarily to commit it to such studies and such occupations. Non tali auxilio nec defensoribus istis, should juridical contests be upheld. Reverence for all womanhood would suffer in the public spectacle of women so instructed and so engaged. This motion gives appropriate evidence of this truth. No modest woman could read without pain and self-abasement, no woman could so overcome the instincts of sex, as publicly to discuss the case which we had occasion to cite supra, King v. Wiseman. And when counsel was arguing for this lady that the word person, in section 32, chapter 119, necessarily includes females, her presence made it impossible to suggest to him, as reductio ad absurdum of his position, that tho same construction of the same word in section 1, chapter 37, would subject woman to prosecution for the paternity of a bastard, and in sections 39 and 40, chapter 164, to prosecution for rape. Discussions aro habitually necessary in courts of justices which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety. If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.

*162The evil which the legislature intended to remove was the abuse, and imprisonment, and robbery of women by bad husbands. The object was good, and I am sorry to know that no law can effect much in this matter. It will do some good, however. There never can be much effective application of law which will make a bad husband a good one.

For the reasons above stated, I am of the opinion that the law as to qualifications of grand jurors is unchanged, and that it was error not to have allowed the challenge of the prisoner, and the cause ought to be reversed and the prisoner discharged.