dissenting: The question here is not whether jury duty generally shall be imposed on women, but whether the two women who served on the jury in the case at bar were disqualified solely by reason of sex. Admittedly they were both more than twenty-one years of age, taxpayers, freeholders, and intelligent. Their service on the jury was authorized by statute. The statute regulating the qualification and selection of jurors uses the word “person” (G-. S., 9-1, et seq.), and it is specifically declared by legislative enactment that the word “juror” shall be a word of common gender and applicable to man or woman alike. Gr. S., 12-3 (13). . The only ground, then, upon which these women can be held disqualified for jury service is that these statutes conflict with the Constitution (Art. I, sec. 13), which declares that no person shall be convicted of crime but by the unanimous verdict of “good and lawful men.” The reference in Art. I, sec. 19, to “the ancient mode of trial by jury” relates only to “controversies at law respecting property,” and the evident meaning is that trial by jury is the ancient mode.
Is the word “men,” as used in sec. 13, to be restricted in- meaning to males, or may it be interpreted as applicable also to women? In my opinion the latter view should prevail.
It was urged on the argument by the defendants that, when the framers of the Constitution wrote “good and lawful men,” they had in mind only males as competent jurors, and that, therefore, this legislative intent gives to the language used a fixed and unyielding interpretation, now controlling. Let us examine this contention.
The Constitution in which this section is incorporated was framed, adopted and ratified in 1868. When the framers wrote the words “good and lawful men” they must be understood to have had in mind also the then existing legislative interpretation and meaning of the words used. At that time the statute in effect, the Revised Code of 1855, ch. 108, declared that “every word imputing the masculine gender only shall extend to and be applied to females as well as males.” The statute then in force construing the meaning of words must be held to shed light on the intent of the framers of the Constitution in the use of those words. The words “good and lawful men” were adapted from the ancient Latin phrase “liberi et legales" meaning freemen and those legally qualified. There is no record that the question of the competency of women as jurors was considered in the Constitutional Convention of 1868 in this connection. Equally so there appears no purpose to disqualify them, and in attempting an interpretation of the intent of the framers of the Constitution we can only do so by consideration of the language used in the light of existing law with which they are presumed to have been acquainted.
*591Upon another ground, also, I think the language of the Constitution should not be held to a rigid and inelastic construction when it conflicts with the progress of human thought and changing social conditions. It should be more liberally construed so as to meet the needs of a complex and growing civilization. I think this section of the Constitution is capable of the reasonable interpretation, in accord with modern thought, which would not disqualify women for this important service. I think it should be given this interpretation in the light of the progressive changes in the status of women and their equal share with men in the powers and responsibilties of government and justice. I do not think the courts should he restricted to the mere ascertainment of what we think now was in the minds of the framers of the Constitution who, however wisely they laid the foundations, could not envision the limitless future, else we should be fettered by the dead hand of the past.
We must not be inadvertent to the fact that constitutions in this country were created by the people for their own welfare. Both the Constitution of the United States and of North Carolina begin with the words, “We the people . . . do . . . ordain and establish this Constitution.” The application of the purpose of written constitutions to all the changing and unforeseen human relationships and achievements of succeeding generations can be attained only by liberal interpretation or wise amendment. As expressed by Justice. Brogden in Walicer v. Faison, 202 N. 0., 694, 163 S. E., 815, “The law is designed to march with the advancing battalions of life and progress and to safeguard and interpret the changing needs of a commonwealth.”
It is held that the disqualification of women for jury service derives from the Constitution, and it is suggested that notwithstanding the 19th Amendment to the Federal Constitution, and the unfettering of. women’s civil, property and political rights, no steps have been taken to extend to her specific legal qualification for the jury. But it will be recalled that the Legislature in 1921, following the giving of equal suffrage to women, declared that the word “juror” when used in the statutes meant women as well as men, and later the Attorney-General promulgated an opinion and legal advice that women were not disqualified for jury service. In many counties this was accepted and acted upon as a correct interpretation of the Constitution and laws, and women were permitted to serve as jurors. Many of the Superior Court judges have so held. In some counties the names of qualified women are included in the jury lists. So that if we should hold now that women were qualified to serve on the jury, it would effect no change, but would only give added authority to a practice already grown up. The apprehension that to hold women not disqualified for jury service might result in the practical *592difficulties suggested in the opinion, is met by the proof that in many states and in some counties in North Carolina women do serve on the jury without detriment to the administration of justice or to the efficiency of the courts.
The question here is not whether women should be required to serve on the jury, but are they disqualified for- such service solely on account of sex? To hold them incapable would seem to me to turn the leaf backward instead of forward. The disqualification of sex is outmoded. Women are in the Army, Navy and Marine Corps. They work in factories, shops, on farms, equally with men. They drive buses, trucks, and street cars. They are members of the police force. They are teachers, writers, nurses, physicians. Their work is interwoven with that of men in all forms of business and professional life. They serve in the legislative and executive branches of the government. They practice law at the bar and sit on the bench. One of the highest judicial positions in America, that of Judge of the Circuit Court of Appeals of the United States, is ably filled by a woman. But in North Carolina she would be disqualified to decide an issue of fact in a case involving a petty misdemeanor, solely on the ground that she is a woman. There is an old maxim that when the reason of a law fails the law itself should fail.
Nor do I think that the intent of the framers of the Constitution of 1868, in this respect, is to be ascertained by recurrence to the common law, to the exclusion of more recent statute law, or that the meaning of the word “jury,” in the good year 1944, is to be interpreted in the light of the practice in those ancient times. True the common law is still in force in North Carolina, but only in so far as it has not been repealed, become obsolete, or found inconsistent with our institutions (G-. S., 4-1). And when by ch. 30, Public Laws 1921, it was declared that the word “juror” should, “when applied to the occupant of such portion,” be a “word of common gender” and “a sufficient designation of the person holding such portion, whether the holder be a man or woman,” this legislative declaration may not be overlooked. That the Legislature meant something by this Act is apparent, and it is equally clear that the Legislature has power to change or abrogate any part of the common law, unless restrained by some provision of the Constitution. It is a rule of universal application that no statute ought to be held in violation of the Constitution unless it so appears beyond a reasonable doubt. Applying this rule, the statute declaring the word juror applicable to women as well as men should not be held in conflict with the constitutional provision that a jury be composed of good and lawful men, unless clearly necessary to do so. If there is a reasonable doubt about the proper interpretation,' it should be resolved in favor of upholding the legislative declaration that juror means-woman as well as man.
*593Though tbe letter of tbe Constitution, uses tbe word “men,” its spirit is broad enough to include women on an equal plane. St. Paul said, “Tbe letter killetb, but tbe spirit giveth life.” 2 Cor. 3 :6.
I favor tbe view tbat tbe word “men” as used in tbe Constitution, Art. I, see. 13, should be interpreted as a word of common gender, and hence tbat tbe trial and judgment below, in all other respects free from error, should not be overthrown because an able Superior Court judge held tbat women were not disqualified by sex from serving on a trial jury.