it is not necessary that a foundation be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection, by reason of the laches of the complainant, the court will upon that ground be passive, and refuse relief. Every case is governed chiefly by its own circumstances. Sometimes the analogy of the statute of limitations is applied; sometimes a longer period than that prescribed by the statute is required. In some cases a shorter period is sufficient, and sometimes the rule is applied where there is no statutable bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence, and decide accordingly. Upon these principles courts of equity are constantly acting as a means "of discouraging stale claims, or gross laches, or unexplained acquiescence in the assertion of an adverse right.” Hayward v. National Bank, 96 U. S. 611. "Nothing," said Lord CAMDEN, "can call forth this court into activity but conscience, good faith, and reasonable diligence. When those are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced." Smith v. Clay, Amb. 645. Upon this record we must assume that the plaintiff knew, or ought to have known, of her rights. Her own conduct in the premises is not susceptible of any other construction consistent with the facts alleged.

We do not think, therefore, there was any error, and the decree must be affirmed.

(3 Wash. T. 131)

HARLAND v. TERRITORY.

(Supreme Court of Washington Territory. February 3, 1887.)

1. JURY-QUALIFICATION OF JURORS-WOMEN.

Women are not competent to serve as jurors, grand or petit, under Code Wash. T. 2078, providing that all qualified electors shall be competent to serve as petit jurors, and all qualified electors and householders shall be competent to serve as grand jurors," notwithstanding an act passed subsequently to the enactment of the Code making women qualified electors. GREENE, C. J., dissenting.

2. CONSTITUTIONAL LAW-STATUTES-EXPRESSING SUBJECT IN TITLE.

The designation of an act in its title as an act to amend a specified section of a Code, without more, is not a sufficient compliance with the constitutional requirement that the object of an act shall be expressed in its title.

3. SAME-ELECTIONS-WOMAN SUFFRAGE.

Washington Territory act of 1883, giving the suffrage to women, and entitled "An act to amend section 3050, c. 238, of the Code of Washington Territory," is unconstitutional and void, on the ground that its object is not expressed in its title. The same is true of the act of January 29, 1886, (Sess. Laws 1885-86, p. 113;) and of the act of February 3, 1886, (Sess. Laws 1885-86, p. 128,) except so far as it purports to amend sections 3079 and 3084 of the Code. GREENE, C. J., dissenting.

4. EXTRADITION-CHARGE-INDICTMENT.

In the case of interstate extradition, a prisoner extradited upon a certain charge may be tried for a slightly different offense, there being nothing to suggest fraud in procuring the extradition. Per LANGford, J.

5. INDICTMENT-DESCRIPTION OF OFFENSE--GAMING.

An indictment charging defendant with carrying on the swindling game of twenty-one, or top and bottom dice, and not describing the games further than by such names, is too indefinite.1 Per LANGFORD, J.

6. CRIMINAL PRACTICE-JUDGMENT-GAMING.

Upon an indictment for carrying on the swindling game of twenty-one, or top and bottom dice, and a verdict of guilty as charged, a judgment of conviction for carrying on the swindling game of top and bottom dice, omitting any reference to twenty-one, is erroneous. Per LANGFORD, J.

1 An indictment which charges an offense in the language of the statute creating or defining it is insufficient, unless language apprises the accused, with reasonable certainty, of the accusation against him. Finch v. State, (Ala.) 1 South. Rep. 565.

7. STATUTES-ENACTMENT AND AUTHORITY-CODE WASH. T.

The book published as the "Code of Washington" appears to be merely a private compilation of the laws of Washington Territory, dividing the law into sections, without any legislative authorization; and an act of the legislature purporting to amend one of those sections is void. Per LANGFORD, J.

8. GRAND JURY-QUALIFICATION-MARRIED WOMEN-HOUSEHOLDERS.

Under Washington Territory laws, a married woman, living with her husband, is not a householder, and is therefore not qualified to sit as grand juror; the statute, prescribing the qualifications of grand jurors, requiring them to be householders. Per LANGFORD, J.

TURNER, J. A question arises in this case which was before the court at its July term, 1884, namely, the question whether married women, living with their husbands, are competent grand jurors in this territory. The question was then decided in the affirmative, but by a divided court. Rosencrantz v. Territory, 2 Wash. T. 267, 5 Pac. Rep. 305. Since that decision there has been a change in the membership of the court, and a majority of the quorum sitting in this case finds itself unable to agree with the views expressed or the conclusions announced in the first decision. Two members of the court, however, yet adhere to that decision. This circumstance gives ground for hesitation in overruling the same; but there are several reasons which the present majority think justify them in giving effect to their views, and which will be likely to prevent embarrassment therefrom in the future administration of the law: (1) We think the first opinion reached did not meet with the concurrence of the bar of the territory. It established no rule of property, and its principles have not been long applied. (2) A new question, not argued or passed on in the first case, arises in this case, and is decisive of it. (3) Both of the judges who adhere to the first opinion, after a service of long duration, in which they have honorably illumined our judicial history by great learning and ability, and by the purity of their lives and the uprightness of their official conduct, are about to retire from office by reason of the expiration of their terms. It is proper for me to add here that the membership of the court may be still further changed in the near future, and,-speaking of myself alone, without such great detriment to the public interest.

I pass then, without further preliminary remarks, to a consideration of the reasons which, in my judgment, properly govern the question. I shall not reiterate the arguments embraced in the dissenting opinion read by me in the first case. Although presented most imperfectly, by reason of the haste in which that opinion was prepared, the views there expressed yet seem conclusive to my mind against the opinion then reached by the majority of the court. There are, however, some additional thoughts pertinent to the reasoning of the majority in the first case to which I will advert before going on with the new question involved.

Section 2078 of the Code provides that "all qualified electors shall be competent to serve as petit jurors, and all qualified electors and householders shall be competent to serve as grand jurors." At the session of 1883 the legislature then passed an act entitled "An act to amend section 3050, c. 238, of the Code of Washington Territory," which act, if valid, makes females of like age with males qualified electors. The claim is that females are competent jurors by reason of these two statutes. From the earliest period in the history of the common law, jurors, grand and petit, have been composed of men. The language of the venire facias was that they be liber et legalis homo; and according to Blackstone, "under the word homo, though a name common to both sexes, the female, however is excluded, propter defectum sexus."

When legislatures have prescribed the qualification of jurors, the requirement that they should be males has always been implied. Section 2078 of the Code carries with it that implication, and undoubtedly that which is implied would have been clearly expressed if it had ever occurred to the members

that a subsequent legislature would confer the elective franchise on females. Whatever may be thought of the propriety of making females voters, there is but one opinion among the great mass of the people, male and female, concerning the imposition on the latter of jury duty, and that opinion is firmly and unalterably against such imposition. The legislature which passed the suffrage act, coming from the people and representing their sentiments, cannot be supposed to have intended the accomplishment of that which the people so universally disapprove, and it is fair to suppose that they would have expressly limited the effect of their act if they had foreseen the lengths to which it would be attempted to carry it. However this may be, the later act dealt entirely with the elective franchise, and, as I have heretofore shown, it could not lawfully have had in contemplation any other object. Neither of the legislatures then, responsible for the respective acts, the joint operation of which is held to make females jurors, having contemplated such a thing, it is manifest that that result can be arrived at only by a process of judicial construction which severely follows the letter of the law and sacritices the spirit. Thus that is made to be law which was never in the mind of any except the most visionary enthusiast.

Well may it be exclaimed, in the face of such judicial exposition: "The letter killeth, but the spirit giveth life." The body of our law may be likened to an ocean, both because of its extent and its characteristics. Every atom is in juxtaposition with its neighbor, the whole pliable and yielding, and yet forceful; and, notwithstanding its immense force, subject to influence and modification by the slightest addition. Every addition which may be made to the mass forces back the several parts with which it comes in contact as far as it may and ought, while the whole confines the part to its just and proper limits. No law can be considered alone and by itself. Every law carries with it impliedly, in spite of its terms, limitations and extensions which the great mass of the law forces on to it and into it. These limitations are infinite and as extensive as the law itself. An illustration in point is the rule of the common law that a child under seven years of age is incapable of any crime.

Mr. Bishop, the most philosophical of all our law writers, thus speaks of the limitation just mentioned: "Therefore, when a statute creates a crime, its terms, however general, are no more applied to such a child than are similar terms of the common law. And this sort of interpretation extends through all our laws, the written and the unwritten alike. The books contain cases in which counsel and the courts forget it; but none in which judicial persons, with their eyes open and duly warned, deliberately reject it. We sometimes read in judicial opinions that those pronouncing them deem it due to the legislature to follow its directions, and not to make exceptions where it has made none; but this sort of language should not be taken as a denial of what every person familiar with our reports knows, namely, that no judge ever deliberately undertook to administer a statute without admitting those exceptions to it which are recognized in the other parts of the legal system. Nor did any legislative body ever proceed on the idea that its enactments are to be put in force by courts so ignorant of legal affairs as to deem them meant for independent rules, to be limited by no others, and to override all laws antagonistic to their general words; for legislatures and courts alike recognize the fact, which common sense teaches to every thoughtful person, that it is neither possible nor desirable, in any system of laws, to attach to each particular law every qualification embraced in every other. So voluminous would the laws thus become, and so often would conflicts be found in them, in spite of every legislative caution, and so difficult would it be to explore their immense masses, that their usefulness would be indefinitely diminished.' Bish. St. Crimes, §§ 117, 117a.

In view of this forcible and conclusive exposition of the relations to each

other of laws, old and new, it needs only to remember the conditions surrounding the subject at the time section 2078 was enacted, to gain the assent of the mind to the proposition that the implication must have attached to that law that jurors, both grand and petit, should be qualified electors who are males. Ought this limitation to be destroyed by implication derived from a legislative act which confessedly deals with another subject? I think not. The change is so marked, and the labor and responsibility which it imposes so ɔnerous and burdensome, and so utterly unsuited to the physical constitution of females, that we ought not to depart from the old order without the most indubitable evidence that the legislature so intended. We are not without high authority on this precise question. The supreme court of Massachusetts, in a case where the statute under which a female claimed the right to assume the office of an attorney at law was broad enough to sustain her claim, denied her the right on the precise ground here put. Robinson's Case, 131 Mass. 377. In discussing that case the court says: "The intention of the legislature in enacting a particular statute is not to be ascertained by interpreting the statute itself alone, and according to the mere literal meaning of its words. Every statute must be construed in connection with the whole system of which it forms a part, and in the light of the common law, and of the previous statutes upon the same subject; and the legislature is not to be lightly presumed to have intended to reverse the policy of its predecessors, or to introduce a fundamental change in long-established principles of law."

In a case arising in Illinois, the supreme court of that state made a similar decision, upon similar reasoning, and the action of that court was affirmed, on appeal, by the supreme court of the United States. Bradwell v. Illinois, 16 Wall. 130. The language of Judge BRADLEY in the latter case is worth quoting at length: "The claim that, under the fourteenth amendment of the constitution, which declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that state, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood, the practice of law included,' assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed as an historical fact that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is found in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institutions, is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband."

Thus we see that the fourteenth amendment, which certainly spreads its protecting shield over females, because females are citizens, is yet not strong enough to overcome the implied limitations of prior law and custom with which it was brought into association when it was adopted. In another case, well known to the profession, the supreme court of the United States, without any express law or rule of court to prevent, refused to admit a female to practice as an attorney at its bar. So, also, upon a similar application, did the supreme court of Wisconsin. I regret that I am unable to refer to the volume containing this admirable opinion of Chief Justice RYAN.

One other reference will suffice on this branch of the case. The chief justice

of this court, in a case in his district in which it was attempted to take advantage of a legislative blunder, whereby, in attempting to add a clause to a statute, all except the added clause was repealed, said: "There can be no reasonable question, then, it seems to me, as to the intent of the legislature. Anybody of any sense, who is not a lawyer or a judge, can tell at a glance what that intent is. When a man becomes a lawyer he does not have to lose his wits, nor does a judge have to be a fool. I desire never to be one of those judges who, when they discover in the legislative proceedings a clerical mistake, inadvertence, or blunder, will push it to extremity, and give to an unhappy effort of expression a sense and power palpably never intended, and permit the awkwardness of a phrase to work ruin and desolation to the poor. GREENE, C. J., in Jackson v. Winn, Port Townsend term. This is most excellent language, and the principles which it announces are extremely pertinent to the question presented in this case. They are decisive of it.

66

I pass now to the question not considered in Rosencrantz v. Territory. That question concerns the validity of the act of the legislature conferring on females the elective franchise. Of course, if that act is invalid, the whole superstructure of the argument by which female jury duty is demonstrated falls to the ground, a broken and shapeless mass. The objectionable feature of that law is its title, which reads: 'An act to amend section 3050, c. 238, of the Code of Washington Territory." The organic act of this territory declares as one of the limitations on legislative action the following: "To avoid improper influences which may result from intermixing in the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." Is an amendatory act of our legislature, the object of which is indicated in the title by a reference only to the section of the Code intended to be amended, a compliance with this mendatory direction?

The language of our organic act is identical with that used in the constitution of New Jersey. In each of the states of Minnesota, Kansas, Kentucky, Nebraska, Alabama, South Carolina, Tennessee, and Arkansas the language of the constitution is: "No law shall embrace more than one subject, which shall be expressed in its title." In Michigan the language is the same except that the word "object" is used instead of “subject.” The language in Wisconsin and New York is: "No local or private bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." California, Texas, Indiana, Oregon, and Iowa have provisions similar to Kentucky and the other states in that class, with the addition that, "if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in its title."

The following, taken from the language of the court, will indicate the purpose for which such constitutional restrictions were adopted:

"I would observe that the traditionary history of this clause is that it was inserted in the constitution of 1798 at the instance of General James Jackson, and that its necessity was suggested by the Yazoo act. That memorable measure of the seventeenth of January, 1795, as is well known, was smuggled through the legislature under the caption of an act for the payment of the late state troops,' " etc. Justice LUMPKIN in Mayor of Savannah v. State, 4 Ga. 26.

"The purpose to be effected by this section was to prevent the incorporation in one bill of provisions of a nature totally diverse, and without necessary connection, with a view to effect a general combination of the particular friends of each measure, and thereby secure their enactment, when some or all of them would likely fail if left to stand on their own merits; and also the entrapping of legislators into the support of a bill into which, by dexterous management, some insidious provision had been inserted of which the title gave no intimation." Albrecht v. State, 8 Tex. App. 216.