App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. in Romaine v. Bowdoin (70 Hun, 366) that where an original issue has been superseded by a new one created by amended pleadings, if the original issue has been disposed of on demurrer, a new note of issue and a new notice of trial are necessary to bring on for trial the issue presented by the amended pleadings, and if the case appears upon the Trial Term calendar without that being done, it should be stricken therefrom. That decision is in strict accordance with the provisions of section 977 of the Code of Civil Procedure. The notice of trial must be given for that term for which the note of issue is filed. This provision of the Code cannot be evaded by the stipulation of attorneys. They have neither power nor control over the calendars, whether for economical or other reasons. It has become necessary in this department to insist upon strict calendar practice. Attorneys cannot give their cases preference in defiance of the requirements of law. These cases were not entitled to appear upon the Trial Term-calendar until the last pleadings were served, and these last pleadings were the amended answers in these cases. There was no undue delay in making these motions, even if that were a consideration which we would entertain on these appeals. The motions should have been granted and the orders appealed from must be reversed, with ten dollars costs and disbursements in one case, and the motions granted, with ten dollars costs in one case. PresentVAN BRUNT, P. J., PATTERSON, O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ. Orders reversed, with ten dollars costs and disbursements in one case, and motions granted, with ten dollars costs, in one case. THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. FRANK Dunn and Others, Defendants. Special juries — chapter 378 of 1896 is constitutional — no constitutional right of appeal from rulings on challenges to jurors. Chapter 378 of the Laws of 1896, entitled "An act providing for a special jury in criminal cases in each county of the State having a certain population, and for the mode of selecting and procuring such special juries; also creating a special jury commissioner for each of such counties and regulating and prescribing his duties," is constitutional. 31 139 157a 528 31 139 147 211 FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. It does not conflict with the provision of the Constitution declaring that trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever. An objection to the act that the accused is deprived of due process of law in that the commissioner exercises a power of selection which may be abused is untenable. The fact that this act deprives parties of an appeal from the decision of the trial court upon their challenges to jurors does not render it unconstitutional, as the right of appeal is not guaranteed by the Constitution and is a matter resting entirely within the legislative judgment. MOTION by the plaintiff, The People of the State of New York, for a special jury, pursuant to chapter 378 of the Laws of 1896, entitled "An act providing for a special jury in criminal cases in each county of the State having a certain population, and for the mode of selecting and procuring such special juries; also creating a special jury commissioner for each of such counties and regulating and prescribing. his duties." Charles E. Le Barbier, for the plaintiff and the motion. David Mitchell, for the defendants, opposed. PER CURIAM: The defendants, in support of their claim that the act in question is unconstitutional, seem to rely upon the following provisions of the Constitution: Section 18 of article 3, section 2 of article 1 and section 6 of article 1. As to the first, namely, that which provides that the Legislature shall not pass a private or local bill for the selecting, drawing, summoning or impaneling of grand or petit jurors, we need only say that this is not such a law. It is clearly a general law, as that term has been repeatedly defined by the Court of Appeals in an unbroken succession of authorities. (Matter of N. Y. El. R. R. Co., 70 N. Y. 327; Matter of Church, 92 id. 1; People ex rel. Electric Lines Co. v. Squires, 107 id. 593; Ferguson v. Ross, 126 id. 459; Sun Pub. Co. v. The Mayor, 8 App. Div. 230; affd., 152 N. Y. 257.) Nor does it conflict with the second of these provisions, namely, that which declares that the trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever. It deprives no man, either directly or indirectly, of a trial by a common-law App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. jury of his peers. In fact, it aims at furnishing to the accused an additional guaranty of just such a jury; that is, a jury of twelve of his intelligent and impartial fellowmen. All men being equal before the law, such a jury is certainly a jury of every man's peers. There can be no other test. The illiterate accused is surely not entitled to a jury of illiterates, nor the learned accused to a jury of scholars. All are entitled to an impartial jury of good understanding. How that shall be attained is left to the legislative judgment, subject only to certain fundamental principles. There is no express constitutional requirement as to the qualifications of the trial jury. Even intelligence and impartiality are but implied. It is the common-law jury which is to be kept inviolate. In England, that always embraced and still embraces special as well as common-law juries. (Thomp. & Mer. Jur. § 12, and cases cited.) And in this State we find early and continuous provisions for struck juries. (Laws of 1786, chap. 41; Laws of 1793, chap. 56; Laws of 1796, chap. 46; Laws of 1801, chap. 98; 1 R. L. 333, § 22; Laws of 1857, chap. 530; 2 R. S. [Edm. ed.] 435; Code Civ. Proc. § 1063–1071.) The claim of counsel is that the jury shall be drawn from the body of the county. Theoretically this is true, but practically it is, and ever has been, drawn from a very meagre and imperfect representation of that body. When so drawn, it is, in a legal sense, drawn from the body of the county. The system may doubtless be bettered from time to time, but, in the nature of things, it can hardly be made perfect. We cannot expect the selection and placing upon the lists of every qualified juror in the county. The Constitution does not require this; nor does it even require an absolutely perfect representation of the entire body. All this must necessarily be relative. The body of the county is, therefore, but a generic term, applied to the representation of the citizens of the vicinage embodied in the lists of qualified jurors, selected by officers appointed by law. Whether that representation, on a primary examination by these officers, be embodied in a general list, or, upon a secondary examination by the same or other officers, in a less extensive list, the inherent character of the selections is the same. They are still representative of the body of the county; and a trial jury drawn therefrom, if impartial and indifferent, is such a jury as the Constitution guarantees. As to the third provision, it is apparently contended that under FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. this act an accused is deprived of due process of law, because the commissioner exercises a power of selection which may possibly be abused. That, at least, is what seems to be suggested. If this were the ordinary struck jury system, where a panel is specially selected for a given case, there might be force in the suggestion of a possible abuse of power. We are unable, however, to see how the commissioner, under the system inaugurated by this act, can possibly abuse his power to the prejudice of an accused. He exercises no function other than such as is exercised by the ordinary commissioner of jurors. The latter selects the trial jurors for the county, and he alone decides upon their qualifications and exemptions. (Code Civ. Proc. 1090.) The special jury commissioner in the exercise of his functions is strictly limited to the selections already made by the ordinary jury commissioner. His lists must be made up from the regular jury lists. He cannot add to the latter, nor place upon his own lists a single outside name. He is thus empowered simply to bring further scrutiny to bear upon the ordinary jury commissioner's selections. This is the sum and substance of his power, and its exercise is carefully regulated by express statutory mandate. His duty, as was said of another official in People v. Petrea (92 N. Y. 140), is "in the main ministerial." The ordinary jury commissioner does not select the particular panel which is summoned to try a man. Still less does the special jury commissioner. Nor does the latter exercise any judicial function as to the qualifications of the twelve men who may ultimately be chosen to serve. His work is preparatory and tentative. In the end, the court alone exercises the judicial function of deciding upon the qualifications of the jurors, and it does so entirely unhampered by the previous examination and inquiry of the commissioner. All the usual challenges, it will be observed, apply to the special jury panel. One of the main purposes of the act would, therefore, seem to be to provide a practical method of saving the time of courts in the process of procuring a competent and impartial jury in exceptional cases. We have been referred to no constitutional provision, and we know of none, which prohibits the Legislature from thus facilitating the administration of justice. The Code and the volumes of Session Laws are full of enactments regulating the details of the jury system throughout the State. These details vary in different parts of the State, App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. notably in the counties of New York and Kings. They are more or less adapted to special conditions. The constitutionality of these varying details so far as the principle of preserving trial by jury inviolate is concerned has never been questioned. So long as they maintain the substantial right and the essential features of trial by jury, they are not unconstitutional merely because they vary in the methods whereby that substantial right is secured. These methods may be embodied, as here, in general laws, or even in amendments to existing local laws in matters of detail (People v. Petrea, supra); and yet they are not violative of any constitutional provision. Such amendments, as was said in the Petrea case, are not within the mischief aimed at by the provision prohibiting a local or private bill for the selection of jurors. A brief illustration will suffice to show how reasonable and sensible is this practical view of the subject. Take, for instance, the case of a man who has conscientious scruples against the death penalty. He may be a perfectly competent juror in all other than capital cases. A man, too, whose mind is so constituted that he cannot as a juror rid himself of the opinions or impressions derived from newspaper hearsay may also be a compent juror in the great majority of cases. Such men should remain upon the jury lists. It is only in exceptional cases that they are disqualified. But why should they be from time to time drawn in exceptional cases and subjected to examinations which unvaryingly end in their rejection? Whole panels are thus frequently depleted. Fresh panels are issued with no better result. These successive panels naturally produce even fewer jurors than the first, for notices can rarely be served personally upon those thus hastily summoned. But little time is afforded either to the notice server or the juror. Then, too, the same jurors are frequently summoned and examined in successive cases, year in and year out, with the same result. If a man has conscientious scruples against the death penalty, it would seem reasonable that he should declare them once for all. Why not to a commissioner authorized to receive his deposition? Why must the same man be endlessly brought into court to say the same thing? And if such a man is an otherwise competent juror, why should he not remain on the general list and be excluded from the special list? The same observations apply to all the limitations relating to the special list |