*1 22, 1943.) (No. 7136. December THE OF KASERIS, Appellant, COURT v. JUSTICE MIKE COUNTY, IDA- PRECINCT, BANNOCK POCATELLO Peace; HYDE, Justice of HO; ALMA CHARLES County, Idaho, MARLEY, of Bannock Sheriff Respondents. (2d) Pac. 469.] [144 January Rehearing denied 1944. Pomeroy Jones, appel-

Jones, & and B. A. McDevitt for lant. *2 Jeffery respondents.

C. M. for BUDGE, substantially J. The in facts this case are February 8, as follows: respondent Marley, On about Alma County, through of sheriff Bannock and his deputy, procured a search warrant and a criminal com plaint against appellant of out the Justice Court of Pocatello Pursuant Precinct, County. Bannock thereto, appellant County property was ing in belong arrested Power and certain respondent the “30 Club” was confiscated the County. Appellant of sheriff Bannock Bannock was taken into County, arraigned Hyde, and before Charles justice peace Precinct, of Pocatello Bannock fixed, by appellant. in which To bond court and furnished complaint, interposed. the criminal a demurrer was Thereafter, prosecuting attorney County of Bannock complaint, filed an amended to which a demurrer was also interposed up ground setting that the Justice Court of Pocatello Precinct was without of either person charged, complaint or the offense and that public not did The demurrer was state facts to constitute sufficient a offense. over-ruled, the case set for trial and appellant petition a filed in the a District Court for writ prohibition. issued, An alternative writ was respondents Judge answered. The cause was submitted (to Sutphen, judge district of the Fourth Judicial District judges whom the had been referred case District), cause, Fifth dissolving permanent from “that certain order dated the 26th who heard and Judicial decided the refusing writ a the1 alternative and to issue prohibition. appeal prosecuted writ of This day May, 1943, and in the above entitled action on filed and entered day prohibi June, 1943, refusing permanent 1st writ of * tion, discharging temporary writ heretofore issued Appellant assigns upon assignments of six and relies error, urges deciding in he the court erred in which that respon- that Precinct and the the Justice Court Pocatello acting County dent sheriff of Bannock were excess juris- of their and that the Justice Court had charged diction to hear determine offense holding complaint; that criminal erred in that the court appellant criminally County prosecuted could Bannock County alleged for an offense committed in Power line; yards within in court erred that holding temporary writ should be vacated denying appellant’s application permanent writ prohibition, holding Court of Justice jurisdiction beyond geographical had Pocatello Precinct boundaries of Bannock grant County refusing *3 permanent restraining prohibition enjoining a said writ of proceeding Court from further in the cause. Justice short, assignments In all one error raise but namely, 19-305, I.C.A., question, is whether or not sec. provides: section constitutional. Said boundary public on the “When a offense is committed thereof, counties, yards two or the or within five hundred more jurisdiction county.” is either Legis adopted by the Idaho Territorial section Said incorporated laws in the lature of and has been in 1864 since Code 782 of the Penal It is identical with sec. state. upheld has construed and of California and been People following cases: Supreme in the Court of California 230; People 494; Alviso, People 55 Wooley, 44 v. Cal. Cal. v. ; Salorse, 457; People Cal. 139 Velarde, v. 62 59 Cal. v. People Cipolla, Padilla, 252; 224, People 100 P. v. 155 Cal. v. following courts, passing 95, 86 Cal.A. 260 394. desig upon jurisdiction committed within of offenses county line, county have held that either nated has of a distance 14, 566; jurisdiction: Ryan State, 168 Wis. 168 N.W. v. 104, 602; Bayliss Donaldson, 219 People 243 Mich. N.W. v. 221, 257; Pugsley, 75 State v. People, 46 Mich. 9 N.W. v. Iowa Mass. Costley, 742, 498; 118 N.W. v. 38 Commonwealth 173, Mathews, 45 Mass. 1; v. 167 Commonwealth 350 92; Barlow, 78,

N.E. also Cal. Carter v. Iowa 74 N.W. see Juris. sec. 57. Lehman, State 130 Ore. opinion, course of that following language is used: “In 16 C.J. it is said: ‘While there are some cases to contrary, weight authority these statutes deprive do not right accused of the constitutional to a trial by committed.’ impartial jury county of the where the offense was Cyclopedia “In 1 Law, Brill’s Criminal ‘Statutory provisions, giving stated: adjoining counties jurisdiction concurrent over offenses committed on or within a certain county line, distance of common, are upheld and have many been states, although some they courts have held that provisions violate constitutional giving the accused a be tried in the offense is they permit so far prosecu- as any tion in county.’ other contrary “Authorities to the rule which we have an- * * may nounced R.C.L., be p. found *. argued that, “It legislature if the can extend the jurisdiction one boundary mile from the Washing- line.of county, ton be extended 20 or 30

miles. It will enough time to meet that when it arises. It say is sufficient to designation by legislature of the strip one-mile wherein the criminal jurisdiction of the Washington court of county was extended is not an unreasonable legislative exercise of discretion. “Neither do we think that of the court necessarily upon depended uncertainty of the location boundary necessary line between the It counties. was beyond for the state establish a reasonable doubt that Washington charged crime was committed in *4 in the If indictment. the crime was committed 900 feet boundary line, place light Washington from the statute county, and the in the of the being not to is be considered as logically then it follows that the court would have jurisdiction. If, hand, no for on the strip, other this one-mile purposes determining jurisdiction, of criminal is to be part Washington county, considered as of there can be rights. no violation of defendant’s constitutional “We are not unmindful that the courts are much in con- proper, have deemed question us. We before on flict however, tend towards opinion, which, our those to follow decisions justice do and which administration of cited, (Italics it.” have not, been obstruct like some which ours.) 429, court, 587, Stewart, 19 N.W. Wis. State v. 1878, construing 4618, to which is similar R.S. their sec. 19-305, constitutional and supra, held statute be sec. secures the constitution which not in violation of “ speedy public impartial ‘a trial accused jury have county or of the district wherein offense shall (Art. ”. Idaho Constitu- been committed’ tion.) might in the interest of the It here observed state, laws officers administration of criminal powers be condemned but with such should clothed commended in operated suppress place their efforts to crime. The purpose carrying appellant for the on charged yards alleged illegal was business with which he was advisedly concededly located within 500 boundary line Bannock and Power counties. Poca- between state, tello, city largest second located within five is nearest, appellant’s small, building, and the miles of Falls, in Power American settlement located building. from the 20 miles distant Moreover, proper this is not a case for the issuance temporary grounds prohibition. writ The wholly the writ A ruled which raised insufficient to warrant were issuance. complaint filed to the demurrer was criminal and over law here involved. Under prohibition if a appellant, should such circumstances for the reason that a writ not issue convicted would have had adequate remedy (Sec. plain, speedy 13-402, law. at I.C.A.; Adair, Ida. Thompson v. Cronan 768.) Court, 15 Ida. v. Dist. judgment respondents. with affirmed costs to specially.) AILSHIE, (Concurring think the writ —I J. judgment properly denied and that the District Furthermore, appellant Court should be affirmed. has a adequate remedy speedy appeal, plain, at law appellant acquit- If the event he be convicted. should *5 ted, he will have deny no occasion to invoke or the further jurisdiction of the court. It must be among conceded that there some confusion just the mandate from cases this court as to when the writ of (sec. 13-302) prohibition, or the writ of counterpart, (sec. 13-401) will issue. annotations foregoing fully the tion here. subject sections cover the without cita- any event, properly denied, the writ was whether the petitioner reason be quate remedy plain, speedy has and ade- law, at or that the statute is constitutional and valid. very A us, different would confront had the granted district court appealed. the writ and the state had A probate justice defendant convicted in a or court has right (sec. appeal 19-4037, ; I.C.A.) whereas, no appeal judgment acquittal accorded state from a probate justice from the or court. respect, In this our correspond- statute differs from the ing (sec. 1466, section of the California Code Kerr’s Penal Code, part II.) party” There the statute authorizes “either appeal. " GIVENS, affirming judgment J. -I concur quash ing appellant the writ plain, speedy, because had a adequate remedy by appeal, at law and the writ should (Pfirman Court, have issued. v. Probate Ida. (2d) 849.) 64 P. appropriately authoritatively Until otherwise, presumed held a statute is to be constitutional. (Sanderson Co., v. Salmon River Canal 45 Ida. 263 P. County Co., Bannock v. Citizens B. & T. 53 Ida. (2d) 674; 22 P. Enking, Robinson v. 58 Ida. (2d) 603.) DUNLAP, J., dissenting. prohibition think avail- —I remedy appellant able as a in this case. It will lie to tribunal, proceedings any corporation, board, arrest or person of the proceedings when such are without or in excess tribunal, corporation, board, of such or person, (Sec. 13-401, I.C.A.) by any be issued in all cases where court, except Court, Probate Justice’s plain, adequate speedy remedy is not a there ordinary 13-402, (Sec. I.C.A.) course of law. vacating temporary prohibition In the order writ of denying permanent writ, Judge Sutphen held, among and other Bannock Idaho, Precinct, things, “that the Justice Court of Pocatello *6 County, Idaho, and the sheriff of Bannock acting jurisdiction, were excess of their thereof,” jurisdiction that the court had etc. charge by the event of conviction on a criminal a jurisdiction court remedy by appeal without is not ade- quate, plain, speedy. nor A required defendant should not be undergo inconvenience, to expense, and hazard the conviction, odium of charge on a criminal a court jurisdiction having try no charge, to him on that and in grant such case the refusal the writ will amount ato justice. denial of substantial Court, 184, In the of v. District 15 Ida. case Cronan 96 768, court, citing approval P. this after with from the Court, 668; Superior case of 15 State v. Wash. 55 Am. St. Rep., follows: “We think the there prohibition, of it is application subject 31; 111, expresses L.R.A. itself as Supreme Washington Court of correctly purpose states the and office of the writ of may stay and that be issued to the action appear inferior tribunal whenever it is made to that acting jurisdiction, without or excess its on the any person shown to be interested in the litigation.” quote Jur., Apropos question, from 42 we Am. to this stated, p. prohibition “As above the writ of as follows: having prevent judicial a tribunal is one to jurisdiction exercising quasi-judicial powers from over or exceeding jurisdic- cognizance or matters not within its technically cognizance. which are within its tion in matters In are broad, ground granting general sense the the writ necessarily the limits of that to be found within defini- therefore, absence, constitutional or statu- tion. In the writ, expanding scope tory provisions fundamental is one there issuance; is, ground usurpation for its that which, appears succeeding sections, jurisdiction, judicial quasi-judicial exercising or func- consist of wanting completely either where tions jurisdiction.” or abuse of excess purpose of this action was to test The fact constitutionality does not of a statute likewise bar the remedy (42 Jur., p. 168, here. par. 32; Am. Annotation A.L.R., beginning p. 796.) I principle see no difference in the involved here with Thompson that which Adair, was involved in the case of 36 Ida. where this court held in effect: questions presented That the might were such'as well have presented by plaintiff appeal been ment judg- on from an adverse against, him ordinarily and that' this court will not entertain in that proceedings, class of unless the record shows refuse a writ would amount to a denial justice. Nevertheless, proceed substantial the court did application to determine the issues on the of the writ there applied for, stating: an which “However, view the fact upon has alternative writ been allowed an affidavit procedure raises a toas the correct in a criminal case under sections of the statute which are some- ambiguous, what frequently which trial are courts upon construe, called we deem it advisable to determine upon this case proper volved.” merit and indicate our views as to the procedure under the sections of the statute in- *7 applied I, case, As therefore, to the facts in this am by not in accord with the rule majority announced here proper to the effect that this not a is case for the issuance plaintiff’s remedy by appeal. of the writ because Appellant 19-305, I.C.A., contends that sec. was enacted by legislature miscarriage justice in order to avoid in those cases where there was doubt as to the situs of crime, but was not intended to cover cases where crime, there was no doubt as to the situs of the and the the county boundary established; lines are fixed and application of the statute to the in facts the instant case defendant, deprive appellant here, would of his constitu- right jury in tional is art. of trial attacked on other constitutional the right the to a trial where the offense alleged committed, to have been contravention with Constitution, providing, right sec. of the “The by jury inviolate.” shall remain The statute is also grounds. urged It is that secures that by jury guaranty right trial under the common as existed law at the time of adoption of our Constitution. Nadlman, (2d) 58, 63 Ida. State Bingham County appellant was tried in wherein the alleged therein, by an offense to have been committed jury county, except one member who was an elector “Appellant’s right of Bannock this court said: by jury guaranteed right trial is the which is to the Ameri- people by can the sixth amendment to the Constitution of Territory States, the United which was force Idaho existence, right when our state came into which says art. late.’ The federal constitutional adopted prosecutions, of our Constitution remain invio- ‘shall provision which was thus Idaho, into the Constitution of ‘In all criminal enjoy speedy the accused shall to a public trial, by impartial jury of the state and district wherein the crime shall have been which * * *’ previously by district shall have been ascertained law. “Appellant by impartial is entitled to a trial a fair and jury composed members, each of whom is a citizen of Bingham county.” the United States an elector of statutory provisions Similar of other states have been courts, ways, construed some and we find decisions both holding provision even that such a vests county, the courts of either the venue is known complaining witness, easily to the and therefore ascertain- taking prosecuting able officers. Others the view that statute, party such a as it insofar authorizes a to be tried entirely county, for an offense committed within one but a specified distance, yards, certain for instance five hundred adjoining county, from line unconsti- tutional and void. may Cases occur in which the crime be committed committed boundary counties, on the line two between boundary so near the line that the distance therefrom is inappreciable, regarded cases, they may, propriety, with having county, committed in either been any conclusion, deprived such no one is constitutional analogous right, present to the such cases are not case. Here, alleged it is the offense Power was committed in *8 County, clearly jurisdiction thereof, within the and triable facts, the thereof. courts Under such we do not think legislature to, power intended or had the to extend the_ jurisdiction adjoining county. to the Justice Court of an peace Justices of are (art. elected in county the each ; Const.) they required are to reside in the precincts they for which appointed are elected (sec. or 1-1402, I.C.A.) ; they precinct from must hold court the appointed except precinct which wholly where the lies elected or incorporated partially within the limits of an or city at village village, they or in which must hold said court case any place city incorporated within the limits of said (sec. 1-1401, ; jus- I.C.A.) the civil of respec- quite limited, is and confined to their tice’s courts I.C.A.), precincts (sec. 1-1403, tive or cities and the criminal public is of these courts confined to certain 1-1406, respective (sec. committed offenses in their counties I.C.A.). charged to a with a offense is entitled One criminal county jury trying the are from of the court trial. Juries selected pro- if the It is obvious that the cause. therefore County appellant ceedings against in Bannock initiated here, alleged committed in for an offense to have been proceed, appellant Power will are allowed to jury County citizens. be tried a of Bannock age-old conception of funda- This in conflict the is jury right the mental to trial where alleged trial to have if such offense be been jury. impartial had fair and before a limitations, Cooley, Mr. in his work on constitutional ed., says: (8th 676) jury must p. “The also be summoned vicinage supposed to have where crime from Constitution, find, Story we been committed.” on law, required “By of all the trial common crimes orig- Nay, they where are committed. further, jealousy required inally still carried its vicinage jury place from the come should (Story alleged been committed.” was to have crime 1779, 1781, 1791.) Const., secs. 712; (Okla.) v. Smith, Buckrice See v. also State Lowe, 782; 45 People, 110 Ill. W.Va. State III Repts. 570, A.L.R. note and cases cited. Am. law was the common no doubt that such There can be by jury. not define constitution does right Our trial adoption, right by jury, at the time of trial the United States the constitution extent, scope thereof, and limitations part made simply Our constitution jury well understood. were trial inviolate; right this remain provides that such shall of trial provision retained constitutional

357 jury committed, the oifense is to the provision though was same extent as this therein inserted many in so words. respondents in this case The brief of counsel cites holding contrary expressed opinion to the herein authorities but I do not consider these authorities as conclusive under particular appear facts here. attention is the as Our called provision a like is involved here and to to a like of the constitutional which of the State of California and to decisions statute thereto, holding in court relation California jurisdiction. county had These cases are referred either majority opinion to in and likewise some additional the Respondents point cases from the same court. out that the statutory adjudicated, provision had California been thus prior adoption to the of our constitution and under the of our court are bound to inter- decisions we follow these statutory pretations provisions constitutional California court. (2d) 1047, Thiessen, 60 Ida. v. Caldwell adopted “It this court said: is axiomatic that statute given will be construction and mean- from another state ing given of prior adoption it the courts of that state our clearly it, such construction unreasonable.” And unless (2d) 454, said, Taylor, P. we has 59 Ida. State v. general rule, court, conformity with the held “This state, usually adopted from another that a statute not conclusively, in accordance with decisions construed prior adoption of that state rendered of the courts interpretation herein, if their reasonable.” constitutionality appear However, does not presented question squarely was of the statute California courts upon by in the cases relied for decision majority opinion. compari- A respondents cited in the facts here would cases with facts in those son do not purpose, cases determine no and these useful serve Further, constitutionality statute. the like California by respondents urged in this case I the construction think unreasonable, presented. facts clearly under the would careful consideration of had the precise This Oklahoma, in the case of Supreme Court of Smith holding in that of the court State, conformity with our us reasonable seems to case constitutional guaranteed to accused of safeguards one therefrom, as follows: crime, quote I impelled conclusion reached “The court is to the attorney general. tion, of art. of the Constitu- Under impar- trial the crime a fair is entitled to a defendant jury tial *10 and, easily ascertainable that the crime is com- where it is county, case, prosecution as it was this the mitted must be mitted. We one county the crime was com- where instituted authority undoubtedly legislature had think the provide that, public is committed on where offense counties, boundary or more or so close line of two the thereto as to make county in which it was it uncertain county. committed, jurisdiction This would be either state, proper safeguard to the and- would would be any right, because deprive in constitutional a defendant regarded propriety with instances the crime could such by county, having as held in either as been committed People, Illinois, in of Buckrice v. Supreme the case Court jurisdiction yards supra, to extend the Ill. 29 arbitrary clearly county line is on either side of the part legislature, because act on the and unreasonable (cid:127) county well surveys so of the boundaries are the known that easily on ordinarily an offense is proof the venue of obtained, was not committed the offense and where counties, so close thereto boundary nor line two county is was to be doubtful prosecution must be commenced committed. offense was undisputed evidence shows action, defendant, legislative could be Otherwise, guaranty afforded deprived arbitrarily him be of the constitutional 2, supra. To hold that art. the venue provision where such under in either easily witness, and therefore complaining known- to the is ascertainable tion of the venue supra. prosecuting officer before institu grant change of in effect prosecution, would of sec. art. contravention also in to the state reached that stated, the conclusion reasons For County no had Payne Court the District defendants, judg against and the charged these the offense trial court to the reversed, instructions with ment prosecution.” dismiss reversed, judgment and the should be cause remand- conformity opinion. proceedings, in with this for further ed C.J., Holden, in this dissent. concurs