On appeal from the Essex Circuit Court.
For the appellants, Elias A. Kanter.
For the respondents, Milton R. Konvitz (Samuel Roessler, of counsel).
The opinion of the court was delivered by
PARKER, J. The Housing Authority, desiring to acquire a tract of vacant land in Newark owned by the appellants, and being unable to agree with the owners as to the value thereof, and acting pursuant to power conferred on it by statute (R.S. 55:14-7) presented the usual petition to a judge of the Circuit Court of Essex county, for the appointment of commissioners; and commissioners were appointed accordingly. The order of appointment was challenged on certiorari, and sustained by the Supreme Court. Ryan v. Housing Authority, 125 N.J.L. 336. The writ did not operate automatically as a stay (R.S. 20:1-8) and none was ordered by the court; so that pending the determination of the certiorari, the commissioners held their hearing and made an award of $13,000, which was appealed by the Housing Authority to the Essex Circuit Court. The issue of damages was there re-tried with a struck jury as provided by statute (R.S. 20:1-20) and the jury awarded $7,015 as the value of the property, and judgment was entered accordingly. The present appeal is from that judgment, and is submitted on briefs without oral argument.
Nine grounds of appeal are assigned. The fourth to ninth inclusive relate to rulings on admission of evidence, and will be presently considered in detail.
The first ground of appeal reads as follows:
"The trial court erroneously denied appellants' application to prove that qualified women jurors were, as the result of caprice in the selection of jurors or for some other reason not recognized in the law, deliberately excluded from the jury panel." [126 NJL Page 62] It is a fact that the list of qualified jurors as delivered to the trial judge by the sheriff, did not contain the names of any women as prospective jurors. The point was raised both at the striking of the jury, and by a challenge to the array at the opening of the trial. Counsel offered to prove that the general list of 2,201 names returned for the then present term included men only. As to this there was no doubt. He further offered to prove that the officials who compiled the list "deliberately excluded women, even though women are now qualified to act as jurors, either out of caprice or some other motive not recognized in the law." As to the "other motive" it seems enough to say that without some specification of its nature, the court was not required to consider it. As to "caprice," counsel said that he "used the word in the sense that it was without legal justification" -- which seems to mean simply that the exclusion was per se an illegal act. That question was considered by this court in State v. James, 96 N.J.L. 132, where we said (at p. 141), "error would exist only if the commissioners, through improper motives, excluded members of one or the other sex in the drawing of the general panel." And this comment was made in view of the amendment of 1921 to section 1 of the Jury act (Pamph. L., p. 50) which substituted "he or she" for "he" and "his or her" for "his," thus recognizing the woman suffrage amendment to the federal constitution. State v. Dolbow, 117 N.J.L. 560, 566. In State v. Carlino, 98 Id. 48; affirmed in 99 Id. 292, it was held that the reasoning in the James case was not affected by the act of 1921. The act of 1938 (Pamph. L. 557, now in N.J.S.A. as 2:85-1) adds the sentence: "Women possessing the qualifications herein stated shall be eligible to serve as either grand or petit jurors." But this does not seem to add any new thought. Women were "eligible" under the act of 1921, and for years have been doing jury service in many of the counties: but in others, as for example Camden county where the James case was tried, the sheriff and jury commissioner gave practical reasons for not including women (at p. 141); and this court added: "A defendant has no right to say what jurors shall try him. His right extends no further than to
exclude jurors by whom he objects to being tried." In the present case we conclude that the omission of women from the jury panel was not per se illegal, and that no improper motive was shown, or even alleged.
The second ground of appeal reads: "The trial court erroneously denied the appellants' challenge to the jury array."
So far as relates to the exclusion of women, the matter has been treated above. But it was also alleged for error that the Jury act (R.S. 2:93-7) requires the sheriff (in struck jury cases, like the present one) to deliver to the judge "a book containing the names of the several persons in his county qualified to serve as jurors, with their places of abode;" and that this was not done. Something is said to the effect that counsel for appellants offered to prove certain facts and that the offer was overruled: but the facts claimed may well be treated as duly proved. As we understand the ...