Fox v. Flynn

Decision Date22 June 1915
Citation150 P. 44,27 Idaho 580
PartiesCARLTON FOX, Prosecuting Attorney for Shoshone County, ex rel. STATE, Plaintiff, v. JOHN M. FLYNN, Presiding Judge First Judicial District for Shoshone County, Defendant
CourtIdaho Supreme Court

Original application for writ of mandate directing Hon. John M. Flynn, presiding judge of the first district in and for Shoshone county, to assume original jurisdiction and proceed with the trial of a certain misdemeanor cognizable in probate and justices' courts. Writ granted.

Writ of mandate issued.

J. H Peterson, Atty. Genl., and E. G. Davis and T. C. Coffin Assistants, for Plaintiff.

A misdemeanor is a case at law, and therefore within the original jurisdiction of the district. (Toncray v Budge, 14 Idaho 621, 635, 95 P. 26; State v. Raaf, 16 Idaho 411, 414, 101 P. 747; State v. West, 20 Idaho 387, 118 P. 773.)

When one or more courts may take cognizance of the same case in the first instance, they are said to have concurrent original jurisdiction. (Hercules Iron Works v. Elgin etc. Ry. Co., 141 Ill. 491, 30 N.E. 1050; Bouvier's Law Dictionary.)

When a court has been granted a certain jurisdiction by the constitution, all the means necessary to the exercise of that jurisdiction are included within the grant. (McDougall v. Sheridan, 23 Idaho 191, 224, 128 P. 954.)

Walter H. Hanson and James A. Wayne, for Defendant.

It was the apparent understanding of those participating in the constitutional convention that misdemeanors would be best handled by courts of inferior jurisdiction and not of record. (Proceedings Idaho Const. Convention, pp. 272-278.)

Prior to the adoption of the constitution, the only method of prosecuting a misdemeanor in district courts was by an indictment. (People v. Du Rell, 1 Idaho 44.)

While felonies may be prosecuted by information, that right does not extend to misdemeanors. (State v. West, 20 Idaho 387, 118 P. 773; State v. Braithwaite, 3 Idaho 119, 27 P. 731.)

In any case, no man can be brought before a court except on a warrant of arrest issued by a magistrate, such officer being especially entrusted with the power of issuing that process. (State v. Raaf, 16 Idaho 411, 101 P. 747.)

The legislature did not make the district judge a magistrate, and therefore he is powerless to issue a warrant.

While it is true that if the legislature has failed to prescribe procedure in criminal prosecutions, the court may do so, this rule does not apply where there is a statutory procedure which may be followed. (McDougall v. Sheridan, 23 Idaho 191, 224, 128 P. 954; Gardner v. Superior Court of Los Angeles County, 19 Cal.App. 548, 126 P. 501; Ex parte Westenberg, 167 Cal. 309, 139 P. 674; People v. Budd, 24 Cal.App. 176, 140 P. 714.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an original proceeding in this court and arises upon a petition for a writ of mandate directing the presiding judge of the district court of the first judicial district in and for Shoshone county to assume original jurisdiction, and proceed to the trial of a certain case involving a misdemeanor triable in probate and justices' courts.

The facts out of which this case arise may be briefly stated as follows:

The prosecuting attorney of Shoshone county subscribed and swore to a criminal complaint before the Honorable William W. Woods, judge of the first judicial district, charging L. E. Sweet, W. A. Simons, the Sweet Hotel Company, a corporation, and L. E. Sweet and W. A. Simons, managers of said hotel company, a corporation, with the crime of permitting gambling in the city of Wallace, Shoshone county, Idaho. In that case the defendants filed a motion for a change of judge, and also a motion to quash and dismiss the action, which had been begun as aforesaid. The motion for a change of judge was granted, and Judge John M. Flynn, one of the judges of the eighth judicial district, and the defendant in this action, was called to hear the case upon the motion to quash and dismiss. After hearing said motion, the said Judge Flynn, on December 9, 1914, made an order granting the motion of the defendants to quash and dismiss the action, "upon the grounds and for the reasons that prior to the filing of the criminal complaint herein no presentment or indictment had been found by a grand jury charging the defendants with the crime set forth in said criminal complaint; that no complaint or information or allegation in writing has ever been made to a magistrate charging the defendants herein with the commission of the crime set forth in said criminal complaint, and that the district judge is not a magistrate within the provisions of the statutes of this state and had no jurisdiction to issue a warrant of arrest upon said criminal complaint; and upon the further ground that a criminal prosecution in the district court cannot be instituted by the filing of a criminal complaint in this court and the issuance of a warrant of arrest thereon."

There are two questions involved in this case: First, Have district courts original jurisdiction to hear and determine misdemeanor cases cognizable in probate and justices' courts; and upon a proper showing, is it their duty to hear and determine such cases in the first instance? Second, If district courts have original jurisdiction in misdemeanor cases cognizable in the probate and justices' courts, what methods or procedure must be followed in the exercise of such jurisdiction? We will discuss these questions in the order above given.

Sec. 20, art. 5, of the constitution, provides as follows:

"The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law."

In the case of State v. Raaf, 16 Idaho 411, 101 P. 747, this court held that, under the above section of the constitution, district courts have original jurisdiction in all misdemeanor cases, as well as in cases of felony. This court held to the same general effect in State v. McGreevey, 17 Idaho 453, 105 P. 1047. In the case of State v. West, 20 Idaho 387, 118 P. 773, in referring to the case of State v. Raaf, supra, this court used the following language:

"This court concluded, and so held, that justices' courts and the district court have concurrent jurisdiction in misdemeanor cases which come within the justices' jurisdiction, and that in such cases a justice of the peace has no authority or jurisdiction to hold a preliminary examination and commit the party to the district court." And the court further held that, where two or more courts have concurrent jurisdiction, the court which first obtains jurisdiction must retain it to a final determination of the cause.

Sec. 13, art. 5, of the constitution is as follows:

"The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with this constitution."

The above provision of the constitution is a restriction upon the power of the legislature to limit the jurisdiction conferred by the constitution on the judicial department of the state. While the legislature may provide a proper system of appeals and regulate, by law, when necessary, the methods of proceeding in the exercise of the powers of all the courts below the supreme court, in doing so, it has no power to prescribe a jurisdiction for the district courts of the state, which is less broad than contained in section 20, article 5, of the constitution.

We think it to be the settled law of this state, under sec. 20, art. 5, supra, and the decisions of this court above cited, construing said section of the constitution, that district courts have original jurisdiction in all misdemeanor cases, including such misdemeanors as are cognizable in the first instance by probate or justices' courts.

This, then, brings us to a discussion of the second question. Probate courts are, by section 21, article 5, of the constitution, given concurrent jurisdiction with justices of the peace in all criminal cases. Sec. 22, art. 5, of the constitution provides in part as follows:

"Justices of the peace shall have such jurisdiction as may be conferred by law, but they shall not have jurisdiction of any cause wherein the value of property or the amount in controversy exceeds the sum of three hundred dollars, exclusive of interest, nor where the boundaries or title to any real property shall be called in question."

In discussing this section of the constitution in the Raaf case, this court used the following language:

"It will at once be noticed that the constitution does not undertake to in any manner fix or prescribe the jurisdiction...

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