Since the right to appeal must be given by an express statutory provision, an appeal is not effective unless it is taken within the time specified and in the manner designated by the statute. In the text of Abbott on Municipal Corporations, § 377, the rule * Jurisdiction is conferred upon the superior court to hear appeals from decisions of the city council only by complying with the provisions of the statute. In White v. Tacoma, 20 Wash. 361, 55 Pac. 319, it was said: "The council derived jurisdiction to reassess solely by virtue of that chapter (chapter 95, Laws 1893, p. 230) and only by complying with its provisions relating to appeals could the superior court acquire jurisdiction." city council confirming an assessment roll for a local improvement. On April 22, 1913, the city council of the city of Colville, Wash., a municipal corporation of the third class, adopted a resolution declaring its intention to order the construction of a sewer system for the sewerage of territory embraced with- is stated thus: in the boundaries as defined by the resolu- "As the right of appeal and review is a statution. On May 27, 1913, after due and prop-tory one, the provisions requiring or providing er notice and a hearing upon the proposed or in a designated manner, are generally considfor its exercise within a certain specified time, improvement had been given, the city coun- ered mandatory, and if the right is not so excil passed an ordinance providing for the ercised by the property owner, it is forfeited or improvement. Thereafter a contract was let lost. for the construction of the sewer system. In due course an assessment roll was prepared and filed with the clerk of the city. A time and place was then fixed for a hearing upon the roll and notice thereof given. Prior to the hearing upon the roll, the appellants filed with the city clerk written objections thereto. On October 7, 1913, the city council by ordinance confirmed the assessment roll. On October 23, 1913, Frank B. Goetter and wife filed with the city clerk and with the clerk of the superior court for Stevens county their notice of appeal and bond on appeal. On November 1, 1913, the appellants filed with the clerk of the superior court a transcript, which contained, among "Such appeal shall be made by filing written other things, the assessment roll, the ap-notice of appeal with the clerk of such city or pellants' objections thereto, and the ordi- town and with the clerk of the superior court nance confirming the roll. This transcript uated within ten days after the ordinance conin the county in which such city or town is sitdid not contain the record of the city council firming such assessment roll shall have become with reference to the assessment. When effective, and such notice shall describe the the cause came on for trial a motion was property and set forth the objections of such apthe cause came on for trial a motion was pellant to such assessment; and, within ten made to dismiss the appeal on the ground days from the filing of such notice of appeal that the appeal was ineffective because it with the clerk of the superior court, the appeldid not contain the record of the city coun- lant shall file with the clerk of said court, a transcript consisting of the assessment roll and cil relative to the assessment. This motion his objections thereto, together with the ordiwas sustained. Thereupon the appellants nance confirming such assessment roll, and the asked leave to supplement the record. This record of the council or other legislative body with reference to said assessment. request was denied. Judgment was entered dismissing the appeal. From this judgment Goetter and wife have appealed. The record presents two questions: First, did the transcript as filed in the superior court embody those things which were necessary to confer jurisdiction upon the superior court? And, second, did the court err in declining to permit the transcript to be amended or supplemented? [1] I. An appeal from the decision of the city council in a local assessment proceeding is special, and not a right which is inherent or constitutional. If a right of appeal exists, it must be by virtue of a statute. In the absence of a statute no such right would exist. McQuillan, Municipal Corp., vol. 2, § 2129; Randolph v. Indianapolis, 172 Ind. 510, 88 N. E. 949. In the case last cited it was said: "Statutory provisions for the improvement of streets and other highways, and for the assessment of the costs thereof against the property benefited are special in character, and, unless expressly granted, no appeal lies from any action or decision of the board or tribunal conducting such proceedings." [2] By section 22 of the Local Improvement Law (Laws 1911, c. 98, p. 453) the right of appeal from the decision of the city council is given to objecting property owners and the method of its exercise is specified. It is there provided: By this statute the appeal becomes effective by giving the notice therein required, and by filing a transcript within the time specified, which shall contain: (a) The assessment roll; (b) the objections thereto; (c) the ordinance confirming the same; and (d) the record of the council with reference to the assessment. Section 23 of the same chapter provides that whenever the assessment roll for the local improvement shall have been confirmed by the council, it shall be conclusive in all things upon all parties not appealing from the action of the city council in confirming the roll "in the manner and within the time in this act provided." Unless the appeal is taken within the time and in the manner specified, it is ineffective. The language of the statute is clear and explicit and mandatory in its terms. It was no doubt the intention of the Legislature to provide that no right of appeal should exist unless taken in the manner provided in the statute. already stated, the transcript filed in the superior court did not contain the record of the city council with reference to the assessment, as required by the statute. The statute not being complied with, the superior court did not acquire jurisdiction. The appellants in this connection cite and rely upon the case of Ahrens v. Seattle, 39 Wash. 168, 81 Pac. 558. That case, however, is not in point upon the question here presented. it not being used as distinct from "impaneled," [Ed. Note.-For other cases, see Grand Jury, Department 1. Certiorari by the State, on the relation of H. P. Murphy, against the Superior Court of Whatcom County and Hon. Guy C. Alston, judge thereof, to review a judgment of the said court refusing a motion to quash an indictment for irregularities in the impaneling of the grand jury. Judgment reversed, with directions to quash the indictment. W. Corliss and John C. Higgins, both of SeatNewman & Kindall, of Bellingham, and C. for relator. Frank W. Bixby, of Bellingham, tle (Hyman Zettler, of Seattle, of counsel), for respondents. [3] II. Did the court err in refusing to permit the transcript to be supplemented? The general rule is, and this seems to be recognized by the appellants, that those things which go to the jurisdiction cannot be supplied after the time fixed in the statute for taking the appeal has expired, and that only defects in the transcript which are not of a jurisdictional character are amendable, in the discretion of the court. Burchell v. Averill Machinery Co., 55 Or. 113, 105 Pac. 403. Since a compliance with the statute was necessary to confer jurisdiction, the trial court did not err in refusing to permit the amendment. The situation is not analogous to that presented under the general statute of appeals which provides for CHADWICK, J. This proceeding is the filing of a transcript. There the statute (Rem. & Bal. Code, § 1729) expressly court in and for Whatcom county in the brought to review an order of the superior makes provision for a supplemental tran-matter of the drawing of a grand jury. Rescript. In addition to that, the general stat-lator was indicted, and moved to set aside ute of appeals (Rem. & Bal. Code, § 1719) the indictment upon the ground, among othprovides that the appeal becomes effective by the giving of notice, and may become ineffectual (Rem. & Bal. Code, § 1721) by failing to give a bond within the time specified. In the present case one of the necessary steps in perfecting the appeal was to file a transcript, as required by the statute. The judgment will be affirmed. ers, that the grand jury was not summoned, [1] The grand jury was selected in the following manner: Seventy-eight names were drawn from the jury lists. Six were not found. A certain number claimed exemption under the statutes, so that about 40 remain CROW, C. J., and GOSE, ELLIS, and ed. From this number the judge presiding CHADWICK, JJ., concur. (82 Wash. 284) STATE ex rel. MURPHY v. SUPERIOR (Supreme Court of Washington. Nov. 16, 1. GRAND JURY (8 8*)-SELECTION-STATUTE. selected 17 to serve as grand jurors. Upon examination some of these were found to be disqualified or were excused; whereupon the judge selected a sufficient number from those remaining to make up the number 17. The remainder, some 18 veniremen, were excused without examination or the chance of being drawn as grand jurors. It is provided in volume 3, Rem. & Bal. Code, § 94-4, that petit jurors shall be drawn by chance, "and before the drawing is made the boxes shall be shaken up so that the slips bearing the names thereon may be thoroughly mixed, and the drawing of the slips shall depend purely upon chance." Grand jurors are drawn from the jury lists as "hereinbefore provided." "Whenever the judge or judges of the superior court of any county in the state shall desire to summon a grand jury, the names of persons to serve as grand jurors shall be drawn from the jury list, as hereinbefore provided." 3 Rem. The word "drawn," as used in 3 Rem. & & Bal. Code, § 94-5. That it was the policy Bal. Code, 94-5, requiring grand jurors to of the Legislature to preserve the right to be drawn from the jury list as therein before provided, is not limited to the original drawing have an unbiased and unprejudiced jury and by the clerk from the jury list of the county, grand jury and that no suspicion should at tach to the manner of its selection in all cases cannot be questioned. An essential element in selecting jurors is the element of chance. The English-speaking people have found no better way, and have made it the supreme test of sufficiency. Selection by chance has been indorsed by this court speaking in harmony with an unbroken current of authority. Mercereau v. Maughlin Mill Co., 53 Wash. 475, 102 Pac. 232; State v. Barnes, 54 Wash. 501, 103 Pac. 792, 23 L. R. A. (N. S.) 932. In the Mercereau Case it was said: "While the statute is not clear as to the exact method to be pursued, its purpose is to provide for a chance drawing from the box." The logic of this observation is that the court should not concern itself with methods, for there may be many methods adopted which would satisfy the law, but that it should insist that the jurors or grand jurors be selected by chance. In the case of State v. Barnes the court quoted from the text of 24 Cyc. 218, wherein the general rule is laid down that methods may be directory, but the material thing-that the jurors should not be the product of arbitrary selection-is so far mandatory as to give ground for challenge if it is not observed. When the statute has said, and this court has said, that a petit jury must be selected by chance, and that grand jurors shall be drawn as "hereinbefore provided," it means that the men who are called and sworn to serve as jurors or grand jurors shall be selected, whether in a preliminary way or finally, by chance. In this case the judge directed the clerk to draw 78 names. In the exercise of a sound discretion, he excused a certain number. Out of the remainder, having 40 names before him, the judge by his own act and judgment made up the jury. We find nothing in the statutes or in any authority that has been called to our attention that gives a judge a right to draw or select either petit or grand jurors. At common law jurors were selected by the sheriff, or by the coroner, or by an elisor. The judge never named the jurors. "As it was an essential principle of the jury trial from the earliest times that the jurors should be summoned from the hundred where the cause of action arose, the court, in order to procure their attendance, issued in the first instance a writ called a venire facias, commanding the sheriff or other officer to whom it was directed to have 12 good and lawful men from the neighborhood in court upon the day therein specified to try the issue joined between the parties. And this was accordingly done, and the sheriff had his jury ready at the place which the court had appointed for its sitting." Forsyth, History of Trial by Jury, p. 168. Under modern practice the jury lists are made up by an independent agency and are drawn by the clerk of the court. The only function the court has to perform is to pass upon the qualifications of the men so drawn and to make up a final panel for jury service. It is earnestly contended that, inas144 P.-3 much as there was a drawing of 78 names from the jury lists, the law is satisfied, notwithstanding the arbitrary selection by the judge of certain ones to be sworn as grand jurors. Granting, for the sake of argument, that no real injustice has been done in this particular case, and that a fair jury was selected, to approve the method adopted by the court would be to permit a judge, if he so willed, to provide a grand jury of his own choosing in every case under color of law. He might direct the drawing of every man on the jury lists of the county, and, having them so drawn, direct the sheriff to summon only certain favored ones, or he might direct the drawing of a certain number, and then proceed to arbitrarily select the men he, and he alone, wanted to serve. No cases are cited to sustain a practice so fraught with possibilities. In fact, methods which have, designedly or otherwise, circumvented the saving element of drawing by chance have been condemned by the courts and by public opinion whenever and wherever they have been resorted to. To review and quote from authorities would extend this opinion to an interminable length. The question has come before the courts in various forms, and our conclusion is sustained by the following cases: State v. Beckey, 79 Iowa, 368, 44 N. W. 679; Shepherd v. State, 89 Miss. 147, 42 South. 544, 10 Ann. Cas. 963; Boyd v. State, 98 Ala. 33, 13 South. 14; Viers v. State, 10 Okl. Cr. 28, 134 Pac. 80; Risner v. Commonwealth, 95 Ky. 539, 26 S. W. 388, 16 Ky. Law Rep. 84; Curtis v. Commonwealth, 110 Ky. 845, 62 S. W. 886, 23 Ky. Law Rep. 267; Covington & C. Bridge Co. v. Smith, 118 Ky. 74, 80 S. W. 440, 25 Ky. Law Rep. 2292. If there is any authority to the contrary, it has not been called to our attention, nor have we been able to find it. [2] The main reliance of counsel, however, is in this: That there is a distinction between the words "drawn" and "impaneled"; that where the word "drawn" is used in the statute it means the original drawing by the clerk from the jury lists of the county; and that the jury may be impaneled by the arbitrary selection of the judge without doing violence to the statute. Counsel finds comfort in the case of State ex rel. Gibson v. Gilliam, 56 Wash. 29, 104 Pac. 1131, where the court, in discussing the time when those drawn to answer a summons for a grand jury should appear in court and be impaneled, referred to the act of drawing and the act of impaneling as if they were distinct things. They may be distinct, for they have various meanings depending upon their settings. While the word "impaneled" is not used in our statute, it means, in common parlance, the proper selection and qualification of those who make up the final jury, whether it be a petit jury or a grand jury; but there is nothing in that case holding or suggesting in any way that a jury may be drawn or impaneled, using the words as meaning the | clerk might be directed to draw the names same thing, and in the sense of selecting or making up a jury, by the act or choice of the judge. When a jury is impaneled to try a civil case, the jurors are drawn by lot out of the qualified jurors present. 1 Rem. & Bal. Code, § 323. Selection by chance is the same thing whether you call it "drawing" or "impaneling." The only difference is that the men drawn from the jury lists are not yet tested as to their qualifications. Their qualification depends upon examination. "Impaneling" means that the veniremen have been qualified by examination and sworn to perform their duties as jurors. Inasmuch as the statute directs the manner of selecting the names of petit jurors, counsel argues that there is an omission of the law in that no such provision is made .for the selection of grand jurors which justifies an arbitrary selection by the court. No such conclusion follows. If section 323 of individuals and qualify them singly until a sufficient number of jurors were obtained, and these might be impaneled as grand jurors. Or the judge might direct that all of those answering the summons of the court should be examined as to their qualifications, and out of the number so qualified the clerk should draw by chance a sufficient number to make up the grand jury. We find nothing in the common law, the Constitution, our statutes, or in the adjudicated cases which will sustain the selection of the grand jury called by the respondent superior court in and for Whatcom county. The judgment of the lower court is reversed, with directions to quash the indictment heretofore filed against the relator on the ground that the grand jury returning said indictment was not drawn and impaneled as required by law. CROW, C. J., and GOSE, J., concur. MAIN and ELLIS, JJ., concur in the result. (No. 12111.) (82 Wash. 322) had not been written, a litigant might still insist upon his right to challenge the array. The Constitution (article 1, § 21) guarantees the right of trial by jury as a right inviolate. COLE v. NORTHERN PAC. RY. CO. et al. This means, in the absence of a statute defining "procedure," the right as it existed at common law. The fairness attending the selection of a jury was the boast of the common law. 3 Blackstone's Commentaries, 354 et seq. "The right of challenge is almost essential for the purpose of securing perfect fairness and impartiality in a trial. In this country (England) the right has existed from the earliest times." Forsyth, History of Trial by Jury, p. 175. The right to question the legal standing of a grand jury has been especially recognized by statute. Rem. & Bal. Code, § 2099, subd. 5, wherein it is provided that an indictment may be set aside if the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law. This answers for the challenge of the common law, that right being preserved in form only as to "any person in custody or held to answer for an offense" (Rem. & Bal. Code, 2025); one of the grounds of challenge being that the "clerk has not drawn from the jury box the requisite number of ballots to constitute a grand jury." This means the grand jury as finally selected and shows that the Legislature had no thought that a grand jury could be selected in any way other than by a drawing from a box by the clerk “in the presence of the proper officers." (Supreme Court of Washington. Nov. 17, 1914.) RAILROADS (§ 324*) - CROSSING ACCIDENT — DEATH-CONTRIBUTORY NEGLIGENCE. Decedent, a boy 16 years of age, riding a bicycle in a westerly direction, approached defendant's double railroad tracks crossing the street at right angles. Decedent slowed down without coming to a stop to permit the passage of a passenger train on the westerly track nearest to him, and, just as this train cleared the crossing, rode onto the easterly track in front of a train going in the opposite direction, and was struck and killed. Held that, it appearing that the train was in sight as decedent approached the easterly tracks within ample time and distance to enable decedent to avoid it, had he used the slightest precaution to ascertain its approach, he was negligent, as a matter of law. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1020-1025; Dec. Dig. § 324.*] Department 1. 1. Appeal from Superior Court, Lewis County; A. E. Rice, Judge. Northern Pacific Railway Company and anAction by Almeda S. Cole against the Northern Pacific Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed. Forney & Ponder and Albers & Allen, all of Chehalis, for appellant. Geo. T. Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for respondents. MORRIS, J. Appellant brought this action to recover for the death of her son, who was killed while attempting a crossing of the respondent railway company's tracks. The court below granted a nonsuit at the conclusion of appellant's evidence, and she appeals. The manner of selecting grand jurors has been the occasion of some doubt; hence we feel warranted in saying that a grand jury might be selected in one of two very simple ways which are not inconsistent with the practice at common law and the usual statutory procedure. A certain number of names The evidence sustaining the right of action might be drawn from the jury lists. The in appellant was sufficient and is not ques CROW, C. J., and GOSE, CHADWICK, and PARKER, JJ., concur. tioned; the point supporting the ruling being | train. The law requires that one approachthe contributory negligence of the deceased. ing a railway crossing shall make a reasonThe accident occurred at 1:30 in the after- able use of his senses to guard his safety, noon of Sunday, August 4, 1912. The de- and the failure to do so is such negligence as ceased was then 16 years of age, and was will prevent recovery in case of injury. It approaching the Main street crossing of re- is not necessary to here say what precautions spondent's tracks in Chehalis, riding a bi- are necessary. It cannot be denied that cycle, and going in a westerly direction. As something must be done to insure safety. he approached the crossing, he was riding, However slight may be the requirement as in the language of the record, "quite fast," to protection, it avails nothing in the light but slowed down, without, however, coming of this record, as the deceased took none, but to a stop, to permit the passage over the proceeded as if there was only one danger crossing of a Great Northern passenger train to be avoided, and that from the train going going south on the westerly track. Just as south upon the westerly track. He was utthe Great Northern train cleared the cross- terly oblivious of the easterly track and of ing deceased rode upon the easterly track, the danger its presence indicated. As apwhen he was instantly struck by the engine plied to this situation, the minds of reasonof a Northern Pacific train going north on able men cannot differ that, if this boy had the easterly track, receiving fatal injuries. taken the slightest heed to his safety, he To the east of the main tracks were two would not have been injured. Not having spur tracks, the first 54 feet distant from the done so, only one conclusion can be reached, track on which deceased was struck, and the and that is as found by the lower court. The second 21 feet. Two blocks to the south of late cases of Stueding v. Seattle Electric Co., the crossing stood some coal bunkers to the 71 Wash. 476, 128 Pac. 1058, Bowden v. east of the main tracks, and between these Walla Walla Valley R. Co., 79 Wash. 184, bunkers and the Main street crossing at the 140 Pac. 549, and Aldredge v. O. W. R. & time of the accident there were probably | Nav. Co., 79 Wash. 349, 140 Pac. 550, with some ties piled "as high as a man's chin," cases there cited, are decisive of the point. and a car or two upon one or the other of the The judgment is sustained. spur tracks. The evidence is not clear on these last points, but we assume it as so established. There was an unobstructed view, however, 160 feet south of the crossing according to the contention of counsel for appellant, and from the second of the spur tracks, distant 21 feet from the track upon which deceased was struck, the main tracks ran straight to the south for over a mile without anything to anything to obstruct obstruct the view. These is only one conclusion that can be drawn from the evidence, and that is that the deceased approached the crossing intent only upon the Great Northern train going south. He took no precaution to avoid danger upon the easterly track, but rode heedlessly on, assuming that the Great Northern train was the only one to avoid. He rode straight ahead, oblivious of his surroundings, except the Great Northern train, and slackened his speed only enough to permit it to pass, before he rode upon the tracks. It is hard to say within what distance the Northern Pacific train was in sight as the deceased approached the easterly of the main tracks, but it cannot be denied that it was in sight within ample time and distance to enable deceased to avoid it, had he used the slightest precaution to ascertain its approach and avoid it. These two passenger trains were in the habit of meeting about this point, and deceased worked in a furniture factory a block and a half to the south of this crossing and along the right of way. We cannot escape the conclusion that this unfortunate boy paid no attention to his safety or to his surroundings other than the Great Northern (82 Wash. 310) (No. 11991.) Nov. 17, ANDERSON v. KOEN. DEAD BODIES (§ 6*)-TRANSPORTATION-CON- [Ed. Note.-For other cases, see Dead Bodies, Cent. Dig. §§ 6, 7; Dec. Dig. § 6.*] Department 2. Appeal from Superior Court, King County; King Dykeman, Judge. Action by Charles E. Anderson against Robert Koen. Judgment for defendant, and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |