929. 5. Another ballot must then be drawn in the place of Oct. 11, 1862, that destroyed, and the name contained thereon shall in the same manner be entered in the minute of the draw- conducted. ing; 6. The same proceeding shall be had as often as necessary until the requisite number of ballots is drawn, exclusive of those appearing to be dead or non-resident; 7. The minute of the drawing shall then be signed by the clerk and the attending officer, and immediately filed in the office of the former. See note to § 968. Drawing, how § 930. Panel to be the sheriff. § 961. [930.] A panel of the names of the persons Oct. 11, 1862, drawn as jurors, with their places of residence and occupation, and stating for what court and the particular delivered to term thereof they were drawn, shall then be made and certified by the clerk, and delivered without delay to the sheriff of the county. See note to § 968. 931. Jurors, how § 962. [931.] At least five days before the first day of Oct. 11, 1862, the term the sheriff shall summon the persons named in [the] panel delivered to him to attend the court, by giving summoned. written notice to each of them personally, or by leaving the same at his place of residence with some person of suitable age and discretion. See note to § 968. $932. § 963. [932.] The sheriff shall return such panel to Oct. 11, 1862, the court at its opening, specifying the persons summoned, and the manner in which each was notified, and and how the date thereof. See note to § 968. Panel, when returned. 933. Penalty for ance of juror. § 964. [933.] The court to which the panel of jurors Oct. 11, 1862, is returned by the sheriff may impose a fine not exceeding twenty dollars for each day a juror, without reason- non-attendable cause, neglects to attend. If, however, the notice to attend were not personally served, the fine shall not be imposed until, upon an order to show cause, an opportunity is afforded him to be heard. The oath of the juror shall be received in his favor in any proceeding under this section. § 934. § 965. [934.] The county clerk shall preserve the oct. 11, 1862, ballots drawn as provided in section 960 [929] until after the adjournment of the court, and shall then, Ballots drawn, how disposed of. Oct. 11, 1862, 934. 1. Destroy the ballots containing the names of those who were discharged for want of a qualification menhow disposed' tioned in section 947 [918], or by reason of an exemption. mentioned in section 948 [919]; Ballots drawn, of. Oct. 11, 1862, $135. Certificate of ing the 2. Deposit in the jury-box the ballots containing the names of those who did not appear, or were discharged for any other reason than those mentioned in the last subdivision; 3. Deposit in a box to be denominated the box of drawn jurors, the ballots containing the names of those who attended and served. § 966. [935.] The clerk of the court shall, within one week after its adjournment, make and file in the office. clerk respect of the county clerk a certified list of all the jurors returned to the court, specifying, attendance of jurors. Oct. 11, 1862, $936. Juror not to Oct. 11, 1862, $937. Power of court juror to attend. 1. Those who were discharged for want of qualification, or by reason of exemption; 2. Those who did not appear, or were discharged for any other reason; 3. Those who attended and served, and the per diem and mileage of each. § 967. [936.] Until the ballots in the jury-box have all been drawn, including those returned, as provided in subdivision 2 of section 965 [934], the ballots deposited in the box of drawn jurors are not to be drawn from, but whenever the ballots in the jury-box have all been drawn, and a new jury list has not been furnished, the ballots of drawn jurors shall all be returned to the jurybox, and the jury drawn therefrom as before, until a new list is furnished. § 968. [937.] Whenever, for any reason, the number of jurors, either in whole or in part, required by this on failure of code, do not attend a term of court, the court has power to direct the sheriff to summon forthwith, from the body of the county, persons having the qualifications of jurors, to serve as such during the term. By Laws of 1885, p. 78, provision was made for drawing and summoning Feb. 24, 1885. grand and trial jurors in separate classes. In State v. Lawrence, 12 Or. 297, the supreme court declared that act unconstitutional, on the ground that it Manner of was in conflict with the constitutional requirement that the grand jury must impaneling juries. be drawn from the jurors in attendance. Section 2 appears to be an independent section, not so connected with the provisions declared unconstitutional as to be involved in the objections to those provisions. The following is the entire act of February 24, 1885: SECTION 1. Sec. 927. For the circuit court, not more than fifty-five nor less than thirty-one, named as ordered by the judge of said court, shall be drawn, from which number the grand and trial juries for the term are selected, as elsewhere provided in this code. For the county court, twelve names shall be drawn, from which number the trial juries for the term are selected in like manner. SEC. 2. That section 926 of title 3 of said chapter and code above mentioned be amended so as to read as follows: Section 926. The jurors for every term of the circuit court in the county shall be drawn from the names deposited in the jury-box; and the jury for the county court, at any term thereof, shall be drawn from the names deposited in said jury-box, upon the order of the county judge previously filed with the county clerk, specifying the time when said jurors are to attend said county court, and they shall be summoned to attend at the time specified in said order; provided, that a jury may be summoned to attend the county court, by order of the judge thereof, for the trial of an issue in such court as in the court of a justice of the peace. SEC. 3. That section 929 of title 3 of said chapter 12 of said code above mentioned be amended to read as follows: Section 929. Whenever jurors are to be drawn, the county clerk shall take to his assistance the sheriff or a justice of the peace for the county and proceed with the drawing, as follows: 1. The clerk shall shake the box containing the ballots so as to mingle them as much as possible. 2. He shall then publicly draw out of the box as many ballots as there are jurors required. 3. A minute of the drawing shall be kept, in which the name contained on each ballot drawn shall be entered before another ballot can be drawn. 4. If when the whole number of ballots required is drawn it appears that a person whose name is drawn is dead, or resides out of the county, or does not possess the necessary qualifications, or is exempt from jury duty, that fact shall be entered in the minutes of the drawing and the ballot containing the name destroyed. 5. Another ballot must then be drawn in the place of that destroyed, and the name contained thereon shall in the same manner be entered in the minutes of the drawing. 6. The same proceeding shall be had as often as necessary until the requisite number of ballots is drawn, exclusive of those appearing to be dead, or nonresident, or not qualified, or exempt. 7. When the drawing is for the circuit court, the clerk shall write the name of each person drawn as above provided upon a separate ballot, and place such ballots in the trial-jury box, and draw therefrom one by one the ballots containing the names of said [persons] until seven of them are drawn, and the seven so drawn shall be known and denominated as the grand jury and the remaining as the trial jury. 8. The minute of the drawing stating in what capacity, whether as grand or trial jurors, each person is drawn shall then be signed by the clerk and the attending officer, and immediately filed in the office of the former. SEC. 4. That section 930 of title 3 of said chapter and code above mentioned be amended to read as follows: Section 930. A panel of the names of the persons drawn as grand jurors, with their places of residence and occupation, and stating for what court and the particular term thereof they were drawn, shall be made and certified by the clerk, and delivered without delay to the sheriff of the county; and also a panel of the names of persons drawn as trial jurors shall likewise be made, certified, and delivered as provided for grand juries. Feb. 24, 1885. Manner of impaneling juries. SEC. 5. That section 931 of said title 3 of said chapter and code be amended to read as follows:Section 931. At least five days before the first day of the term, the sheriff shall summon the persons named as grand jurors in the panel delivered to him to attend the court on the first day thereof, by giving written notice, specifying the capacity in which they are to attend and the time when, to each of them, personally, or by leaving the same at his place of residence with some person of suitable age and discretion; and he shall, within the same time and in like manner, summon the persons named as trial jurors in the panel delivered to him to attend the court on the fourth day thereof, unless the same be a term appointed by the court or judge thereof, when the trial jury may be summoned to attend such term on such a day thereof as such court or judge may prescribe in the order appointing the term. SEC. 6. That section 932 of said title 3 of said chapter and code be amended so as to read as follows: Section 932. The sheriff shall return each of such panels to the court at its opening, specifying the persons summoned and in what capacity summoned, whether as grand or trial jurors, and the manner in which each was notified, and the date thereof. SEC. 7. That section 937 of said title 3 of said chapter and code be amended to read as follows: Section 937. Whenever for any reason the number of jurors, either grand or trial jurors, either in whole or in part, required by this code do not attend a term of court, or are excused from service as jurors for any reason that may appear to the court sufficient, the court has power to direct the sheriff to summon forthwith from the body of the county the necessary number of persons having the qualifications of jurors to complete the panel of grand or trial jurors, as the case may be, to serve as such during the term. SEC. 8. That section 31 of chapter 5 of title 1 of the Code of Criminal Procedure, as compiled by Matthew P. Deady and Lafayette Lane, be amended so as to read as follows: Section 31. A grand jury is a body of men, seven in number, drawn by lot as provided in title 3 of chapter 12 of the Code of Civil Procedure, having the qualifications prescribed in chapter 12 of the Code of Civil Procedure, and sworn to inquire of crimes committed or triable within the county from which they are selected. SEC. 9. That section 34 of chapter 3 of title 1 of the said Code of Criminal Procedure be amended so as to read as follows: Section 34. Before accepting a person summoned as a grand juror, the court must be satisfied that such person is duly qualitied to act as a juror; but when found qualified he must be accepted, unless the court, on the application of the juror before he is sworn, shall excuse him from such service for any of the reasons prescribed by chapter 12 of the Code of Civil Procedure. SEC. 10. That section 38 of chapter 5 of title 1 of said Code of Civil Procedure be amended so as to read as follows: Section 38. If after the formation of the grand jury, and before they are finally discharged, a grand juror becomes sick, or for any reason is unable to continue in the discharge of his duty, the court may order such juror to be discharged therefrom, and direct that another person be summoned from the body of the county, possessing the necessary qualifications, to take his place upon the grand jury. SEC. 11. That section 33 of chapter 5 of title 1 of the Code of Criminal Procedure, as compiled by Matthew P. Deady and Lafayette Lane, be repealed. SEC. 12. Inasmuch as the present method of drawing and summoning jurors is expensive to the several counties of the state, this act shall be in full force and effect from and after the first day of April, 1885, and the secretary of state shall, immediately after the approval hereof by the governor, forward to each of the county clerks and circuit judges of this state a certified copy of this act under his hand and seal. SEC. 13. Nothing in this act shall be so construed as to in any manner affect the drawing or forming of grand or trial jurors [juries] at any term of court held after this act shall go into force and effect when the jurors for said court shall have been drawn prior to the time this act shall go into effect; but said grand and trial juries shall be drawn and formed at said court as provided by the several set times of the statute of which this is amendatory. TITLE IV. § 969. [938.] A referee is a person appointed by the Oct. 11, 1862, court or a judicial officer, with power, 938. Referee, 1. To try an issue of law or of fact in a civil action, definition of. suit, or proceeding, and report thereon; 2. To ascertain any other fact in a civil action, suit, or 12 Or. 388. proceeding, when necessary for the information of the court, and report the fact, or to take and report the evidence in a suit in equity; 3. To execute an order, judgment, or decree, or to exercise any other power or perform any other duty expressly authorized by this code. Referee is appointed to take oral proofs only. Written documents, especially when proved by authentication, must be put in evidence at the hearing: Baker v. Woodward, 12 Or. 3. The referee's findings will not be reviewed on appeal if not objected to on the trial: State v. Grover, 10 Id. 66; nor will findings be reversed un- § 970. [939.] The appointment of a referee is de- Oct. 11, 1862, nominated a reference. The manner and occasion of 939. Evidence, making an order of reference are elsewhere provided for definition of. in this code. Trial by referees, what may be referred, etc.: See title 6 of chapter 2, ante, p. 309. TITLE V. OF COMMISSIONERS TO TAKE AFFIDAVITS, AND THE PROOF § 971. How appointed, tenure of office, powers and duties. § 972. Seal and oath of office, and where and when filed. 971. [940.] The governor may appoint as many oct. 11, 1862, commissioners in each of the other states, or in a terri- $940. tory of the United States, or in the District of Columbia, as he may deem expedient, who shall hold their offices |