Opinion of the Court delivered by
McGirk Judge.At the Febi’uary term‘of the circuit court for St. Louis county, George K. McGunnegle was summoned by the sheriff to serve as a petit juror, who refused to serve, and for so refusing the' court imposed on him a fine of five dollars. To reverse that judgment, imposing the fine, McGun-aigle has brought his cause to this court.
It appears, by a bill of exceptions, that McGunnegle, in excuse for not serving on the jury, relied and insisted, before that court, for exemption, on an act of the Legislature, passed the 6th day of Feb’ry 1837. The act will be found in page 70 of the acts of 1837, by which, it is provided: “that it shall be the duty of the county court of St. Louis county, to keep a list of persons subject to serve as petit jurors in said county, and to furnish the sheriff of said county, at least ten days prior to the sitting of the circuit court, with the names of forty eight suitable persons on said list, to serve as jurors, at the approaching term of the circuit court; and that the 12 first on the list, shall serve the first week; the *369next 12 shall serve the second week, and so on till the list is gone through.” The act provides, that no one shall be required to serve on more than six juries in one year, and the persons so serving, shall not be required again to serve till all qualified have served. The act then provides, that the circuit court may, as often as it may be necessary, order an additional number of jurors to attend said court; and that all jurors shall receive out of the eounty treasury ior serving, one dollar per day.
„ 'J'lio act of xclj. o (Laws’of Mo’ “°'¶;0 summoning forñt.^Louis county, is eu-It appears also, that the county court has hitherto failed, by neglect or refusal, to execute the act; and that the circuit court has only the ordinary means left and provided by law for every county, of obtaining juries, and that, in this way, McGunnegle was regularly called on to serve on the jury. The question submitted by the record, by^he counsel for the plaintiff in error, is, that no person in St. Louis county, can be lawfully required to serve on a jury, in any other way, than as required by the act of 6th Feb. 1837; and that, therefore, the court erred in imposing a fine on the plaintiff.
To this Mr. Bent, for the State, replies, that for the civ-■cuit court to proceed in business without a jury, would be unconsitutional; and that if no mode existed by law of obtaining a jury, yet it would be the duty of the court to provide its own mo ie, so as to enforce the constitutional provision, which is, “that the trial by jury shall remain inviolate.”
My opinion is, that in the absence of all law, as to the means of the obtaining juries, the business of the circuit court would cease till the law making power should redress the evil, and the responsibility would fall on the legislature.
But, in. this case, there exists no such state of things. The act of 6th Feb’y. is only accumulative; it contains no nega- %> * live nor repealing clauses. Why the county court has not executed the law, is not a subject for present investigation. It may be a subject for the exercise of the- authority of the circuit court, under its constitutional power to control in-fierior tribunals. There is nothing in this point, to entitle the plaintiff m error to a reversal oi the fine.
It appears by the record, that McGunnegle is, and was, a member of the St. Louis Central Fire Company, at the time *370was reciu^re^ t0 serve 011 the jury; and that by the char--ter of the said company,, it is declared, that the members of the company are, and shall be exempt from serving on juries. McGunhegle showed to the court, that he was a member of the Fire Company, as stated above, and on that account claimed exemption from serving as a juror; the court, over ruled the- claim- of' exemption, which is excepted to,- and this matter is alledged as error: It is alledged, by the counsel for the State, that the exemption given here is against the genius of the government; and, therefore, void as unconstitutional. It is admitted, that exemptions, and monopolies, are-to say the least of them, odious, and sometimes justly so.
oT^the actin’-corporating fire com pa-Loui's°f(Laws of Mo. session X72o"exempt-ing the eient” mem-corporation from serving neither un-W constitution-instance rc-th<ígeneral policy of the law'But it seems to me, that exemptions are sometimes exceedingly proper. It is, as a general proposition, true, that every citizen ought to bear an equal and just share of the burdens and duties of the government. But who can so ProPerty judge of the just and equal distribution of these duties, as the Legislature of the country ? It seems to me, ^at Legislature- have the power, and that it is their duty do so; and if they should sometimes be-mistaken,, it does not follow, that the- distribution is, for that reason, void.— case’ ^e-duties of a- member of the Fire- Company,, upon an- inspection of the- charter, will be- found to be equal, ^ not greater,, in all probability,.one year with another than that of a juror. If then-McGunnegle undertook‘those duties, which involve a risque of life very often, it seems but ^lat other citizens,, who are not engaged in- disebarg-ing these duties, should perform his share of the duties of a juror. Hence, I see nothing either unlawfitl-, unconstitutional, or unjust in the exemption. Therefore the court in-imposing the fine, and giving judgment in that case-, erred.— The whole court being of the. same- opinion, the same is reversed.