Rosencrantz v. Territory

Opinion by

Hoyt, Associate Justice.

Plaintiff in error was indicted by a Grand Jury, composed in part of married women living with their husbands. She took seasonable objection to said Grand Jury, on the ground that ■said women were not competent grand jurors, and her objection having been overruled, she has brought the case here, and Assigns the overruling of her said objection as error.

The only important question raised by the record is the single ■one, as to whether or not, under the laws of this Territory, married women living with their husbands are competent grand jurors.

The Code of 1881 provides that all electors and householders ¡shall be competent grand jurors, and it is claimed by plaintiff In error, that this must be held to apply to only such persons as were thus qualified at the time such provision was enacted, and not to such as should thereafter become endowed with such requisite qualifications; but to us it seems clear that the Legislature intended simply to prescribe what classes of persons in ¡society, as it was then, or should be thereafter constituted, ■should be called upon to perform such jury duty, and that -whenever a person by any change in his condition was brought within such requirements, he at once became liable to perform ■such duty, and that likewise where, by a change in the law, a •class of persons was brought within such requirements, the members of such class at once became liable to society for all the obligations incident to the class of electors and householders of which they had thus become members.

Were such married women, then, electors and householders ?

That they were electors, is fully conceded, leaving only the ¡single question, as to their being householders, for consideration. We shall not be aided in this discussion by attempting to single ■out a definition of the word householder, as under the facts disclosed by this record the indictment herein must be sustained, If it is possible that a married woman living with her husband, as such, can be a householder within the meaning of such term, ¡as used in our act as to grand jurors; and this must depend •entirely upon the change wrought in family relation by chapter 188 of the Code of 1881; for of course it is conceded that under the common law, the relation of the wife to the husband was ¡such, that while she was living with him she was not such a householder, as her identity was largely lost in that of her husband, and she had no right to be heard as to the disposition of the property or children that resulted from the marriage, so long as her husband survived.

This harsh rule of the common law has been, however, gradually changing, and from time to time various restrictions have been imposed upon the obsolete right of control of the husband ; and the right of the wife to participate in such control came to be more and more recognized by the laws of nearly all of the States and Territories of this Union.

And the changes thus made in the law, though many of them were at the time considered radical, have so far as we are advised universally tended to the elevation of the marriage relation and of society, and have been fully sustained by the Courts. Our Legislature, imbued with this spirit of progress, enacted the law which now constitutes the chapter of the Code above-referred to; and that it intended radical legislation upon the subject is not only consonant with the spirit of the times, but is clearly shown in the title of the act, “ An Act to define the Rights of Married Persons ” ; not certain rights, but the rights ; and when such title is viewed in connection with the body of the act, it could probably with propriety read “ all the rights.”

At least, the title and the act are broad enough to show that it was the intention, by it, to abolish all the disabilities of the wife as a member of the family, which had been imposed upon her by the common law, and to provide instead of said common law rule, a new relation between husband and wife, as members of the family.

What was this new relation provided for in said chapter?

To us it seems that the relation between husband and wife thereby established was (with certain exceptions therein stated) one of absolute equality before the law,

As it not only in express terms gives to her the same rights-to hold property as her husband, but in section three of said act expressly abolishes all civil disabilities imposed on her by the marriage relation, which were not imposed or recognized as existing as to the husband ; and such positive and unequivocal language was used to make this section strong, and beyond question, that it was thought necessary to expressly provide that the right to vote or hold office should not thereby be conferred, lest the unrestricted language of said section should be so strong as to amend the election law by implication, and thereby enable women to vote, the single privilege or right which that Legislature was not ready to confer upon women, but which the subsequent one saw fit to freely and fully bestow.

Then, by section four of said act, she was given exactly the same measure of control over the children of the family as her husband, with the same right to any or all of their earnings, and the same voice in directing all things connected with the family go vernment.

Before this act the father could control the children, irrespective of and even against the express wish and will of the mother, and could send them from or keep them at home at his own caprice.

Since its passage, by its express terms, all of this is changed ; and now the mother as fully controls the children as does the father; and it is clear that under said act it would take the agreeing wills of both father and mother .before their children could be sent permanently away from home to attend school, or for any other purposes; and we think that likewise in all the affairs of the family (not excepted as above stated) what before could be done by the husband, even against the will of the wife, can now only be done by the consent of both.

At common law he had sole control, and was therefore properly treated and held as the head of the family; by our statute the two together, and acting jointly, have like sole control, and are, therefore, jointly the head of the family.

But it is said that if they are thus equal, then neither of them is the head of the family, and therefore not the keeper of a house, as each is only a half of a housekeeper.

This, however, does not follow, as each of them has the absolute right to control the family and household in the absence of the other, and each has all the responsibilities and rights growing out of such control.

One person engaged in keeping a store is said to be a storekeeper, but wc do not speak of one or two persons, who are keeping a store as equal partners, as a half of a storekeeper.

Neither do we think that one or two persons engaged upon equal terms in keeping a house, can be said to be or is only a half of a housekeeper.

Each acting for himself or herself, but in conjunction with his or her companion, is the keeper of the entire household.

The chapter in question has, then, so changed the common law that a wife living with her husband may be a householder, and hence qualified to sei've as a grand juror.

But it is claimed that the said chapter is unconstitutional, if given this application to our jury system, on the ground that the jury guaranteed by the constitution is a jury of men; but as this question was very slightly, if at all, argued in this case, we shall content ourselves by saying that, as to this case, such position is untenable, as the Legislature was at liberty to provide for the trial of crime (not infamous) without presentment of a Grand Jury at all, and a fortiori could provide for its present ment by other than common law Grand Jury. We find no error in the record, and the judgment and sentence must be affirmed, and it is so ordered.

I concur: S. C. Wingard, Associate Justice.