(dissenting).
In tlm Crawford Case, the court said: “We do not think that § 215 of the [1901] Code of the District [D.C.Code 1929, T. 18, § 357] includes the whole subject of the qualifications of jurors in that District. If that section, together with % 217 [section 360, tit. 18, D.C.Colo. 1929] were alone, to he considered, it might he that the juror was qualified. But by the common law, a further qualification exists. If that law remains in force in this regard in this District a different decision is called for from that made in this case. The common law in force in Maryland, February 27, 1801, remains in force here, except as the same may be inconsistent with or replaced by some provision of the Code for the District. * * * It has not been contended that the common law upon the subject of jurors was not in force in Maryland at the above-named date, or that it did not remain in force here, at least up to the time of the passage of the Code. Jurors must at least have the qualificatipns mentioned in § 215, but that section does not, in our opinion, so far alter the common law upon the subject as to exclude its rule that one is not a competent juror in a case if he is master, servant, steward, counsellor, or attorney of either party. In such case a juror may be challenged for principal cause as an absolute .disqualification of the juror.” (Italics supplied.)
It thus appears that the decision in that case was put upon tjje common law rule— there being no statutory provision inconsistent with that rule.
The question raised in the present case was not involved, and, of course, not decided in that case. “If,” said the court, “that section [section 215], together with § 217, were alone to be considered, it might be that the juror was qualified.” 212 U.S. 183, at page 195, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392. But the court held that those sections must be read in conjunction with the common law so far as that law had not been altered thereby. It will not be denied that the Act of 1935, “to amend the law providing for exemptions from jury service in the District of Columbia,” is in part inconsistent with the common-law rule. Prior to that enactment?, bias was conclusively implied as to those embraced within the provision of section 217 of the Code exempting “all executive and judicial officers, salaried officers of the Government of the United States and of the District of Columbia.” This conclusive implication of bias continues to apply to those embraced within the provision of the first paragraph of section 217, as amended by the 1935 act (49 Stat. 682) exempting “All executive and judicial officers of the Government of the United States and of the District of Columbia.” But the last paragraph of section 217, as amended, overrides the implication of bias as to the persons covered by the last paragraph, and, if “otherwise qualified according to law,” the amendment makes the persons affected “qualified to serve as jurors in the District of Columbia.”
In my view, that provision is well within the constitutional power of Congress. It removes the disqualification, according to the majority opinion, of more than 100,000 government employees. In point of intelligence, character, and general fitness for jury service, those employees rank high.
The judgment should be affirmed.