I think prohibition is available as a remedy to appellant in this case. It will lie to arrest proceedings of any tribunal, corporation, board, or person when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, (Sec. 13-401, I.C.A.) and may be issued by any court, except Probate or Justice's Court, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. (Sec. 13-402, I.C.A.) *Page 353
In the order vacating the temporary writ of prohibition and denying a permanent writ, Judge Sutphen held, among other things, "that the Justice Court of Pocatello Precinct, Bannock County, Idaho, and the sheriff of Bannock County, Idaho, were not acting in excess of their jurisdiction, and that the court had jurisdiction thereof," etc.
In the event of conviction on a criminal charge by a court without jurisdiction the remedy by appeal is not adequate, plain, nor speedy. A defendant should not be required to undergo the inconvenience, expense, and hazard the odium of a conviction, on a criminal charge by a court having no jurisdiction to try him on that charge, and in such case the refusal to grant the writ will amount to a denial of substantial justice.
In the case of Cronan v. District Court, 15 Idaho 184,96 P. 768, this court, after citing with approval from the case ofState v. Superior Court, 15 Wn. 668; 55 Am. St. Rep., 907; 47 P. 31; 37 L.R.A. 111, expresses itself as follows: "We think the Supreme Court of Washington there correctly states the purpose and office of the writ of prohibition, and that it may be issued to stay the action of an inferior tribunal whenever it is made to appear that it is acting without or in excess of its jurisdiction, on the application of any person shown to be interested in the subject of the litigation."
Apropos to this question, we quote from 42 Am. Jur., p. 156, sec. 18, as follows: "As above stated, the writ of prohibition is one to prevent a tribunal having judicial or quasi-judicial powers from exercising jurisdiction over matters not within its cognizance or exceeding its jurisdiction in matters which are technically within its cognizance. In a broad, general sense the ground for granting the writ are necessarily to be found within the limits of that definition. In the absence, therefore, of constitutional or statutory provisions expanding the scope of the writ, there is one fundamental ground for its issuance; that is, the usurpation of jurisdiction, which, as appears in succeeding sections, may consist of exercising judicial or quasi-judicial functions either where jurisdiction is completely wanting or in excess or abuse of jurisdiction."
The fact that the purpose of this action was to test the constitutionality of a statute likewise does not bar the *Page 354 remedy here. (42 Am. Jur., p. 168, par. 32; Annotation 113 A.L.R., beginning p. 796.)
I see no difference in the principle involved here with that which was involved in the case of Thompson v. Adair, 36 Idaho 791,214 P. 214, where this court held in effect: That the questions presented were such as might well have been presented by plaintiff on appeal from an adverse judgment against him and that this court will not ordinarily entertain jurisdiction in that class of proceedings, unless the record shows to refuse a writ would amount to a denial of substantial justice. Nevertheless, the court did proceed to determine the issues on the application of the writ there applied for, stating: "However, in view of the fact that an alternative writ has been allowed upon an affidavit which raises a question as to the correct procedure in a criminal case under sections of the statute which are somewhat ambiguous, and which trial courts are frequently called upon to construe, we deem it advisable to determine this case upon merit and indicate our views as to the proper procedure under the sections of the statute involved."
As applied to the facts in this case, I, therefore, am not in accord with the rule announced here by the majority to the effect that this is not a proper case for the issuance of the writ because of plaintiff's remedy by appeal.
Appellant contends that sec. 19-305, I.C.A., was enacted by the legislature in order to avoid miscarriage of justice in those cases where there was doubt as to the situs of the crime, but was not intended to cover cases where there was no doubt as to the situs of the crime, and the county boundary lines are fixed and established; that the application of the statute to the facts in the instant case would deprive defendant, appellant here, of his constitutional right to a jury trial in the county where the offense is alleged to have been committed, in contravention with art. 1, sec. 7 of the Constitution, providing, "The right of trial by jury shall remain inviolate." The statute is also attacked on other constitutional grounds. It is urged that the guaranty of the right of trial by jury secures that right as it existed under the common law at the time of the adoption of our Constitution.
In State v. Nadlman, 63 Idaho 153, 118 P.2d 58, wherein the appellant was tried in Bingham County for *Page 355 an offense alleged to have been committed therein, by a jury of the county, except one member who was an elector of Bannock County, this court said: "Appellant's right to trial by jury is the right which is guaranteed to the American people by the sixth amendment to the Constitution of the United States, which was in force in Idaho Territory when our state came into existence, and is the right which art. 1, sec. 7 of our Constitution says 'shall remain inviolate.' The federal constitutional provision which was thus adopted into the Constitution of Idaho, is 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. * * *'
"Appellant is entitled to a trial by a fair and impartial jury composed of members, each of whom is a citizen of the United States and an elector of Bingham county."
Similar statutory provisions of other states have been construed by the courts, and we find decisions both ways, some holding that such a provision vests jurisdiction in the courts of either county, even where the venue is known to the complaining witness, and therefore easily ascertainable by the prosecuting officers. Others taking the view that such a statute, insofar as it authorizes a party to be tried for an offense committed entirely within one county, but a certain specified distance, for instance five hundred yards, from the county line in the adjoining county, is unconstitutional and void.
Cases may occur in which the crime may be committed on the boundary line between two counties, or committed so near the boundary line that the distance therefrom is inappreciable, in which cases, they may, with propriety, be regarded as having been committed in either county, and by such a conclusion, no one is deprived of any constitutional right, but such cases are not analogous to the present case.
Here, it is alleged the offense was committed in Power County, clearly within the jurisdiction thereof, and triable in the courts thereof. Under such facts, we do not think the legislature intended to, or had the power to extend jurisdiction to the Justice Court of an adjoining county.
Justices of the peace are elected in each county (art. 5, sec. 22, Const.); they are required to reside in the precincts for which they are elected or appointed (sec. *Page 356 1-1402, I.C.A.); they must hold court in the precinct from which elected or appointed except where the precinct lies wholly or partially within the limits of an incorporated city or village, in which case they must hold said court at any place within the limits of said incorporated city or village (sec. 1-1401, I.C.A.); the civil jurisdiction of justice's courts is quite limited, and confined to their respective precincts or cities (sec. 1-1403, I.C.A.), and the criminal jurisdiction of these courts is confined to certain public offenses committed in their respective counties (sec. 1-1406, I.C.A.).
One charged with a criminal offense is entitled to a jury trial. Juries are selected from the county of the court trying the cause. It is therefore obvious that if the proceedings initiated in Bannock County against appellant here, for an offense alleged to have been committed in Power County, are allowed to proceed, that appellant will be tried by a jury of Bannock County citizens.
This is in conflict to the age-old conception of fundamental right to trial by the jury of the county where the offense is alleged to have been committed, if such trial may be had before a fair and impartial jury.
Mr. Cooley, in his work on constitutional limitations, (8th ed., p. 676) says: "The jury must also be summoned from the vicinage where the crime is supposed to have been committed." In Story on the Constitution, we find, "By the common law, the trial of all crimes is required to be in the county where they are committed. Nay, it originally carried its jealousy still further, and required that the jury should come from the vicinage of the place where the crime was alleged to have been committed." (Story Const., secs. 1769, 1779, 1781, 1791.)
See also State v. Smith, (Okla.) 197 P. 712; Buckrice v. ThePeople, 110 Ill. 29; State v. Lowe, 21 W. Va. 782; 45 Am. Repts. 570, 76 A.L.R. 1038, note III and cases cited.
There can be no doubt that such was the common law right of trial by jury. Our constitution does not define the right of trial by jury, but at the time of its adoption, and in which the constitution of the United States was made a part thereof, the extent, scope and limitations of jury trial were well understood. Our constitution simply provides that such right shall remain inviolate; and this constitutional provision retained the right of trial by a *Page 357 jury of the county where the offense is committed, to the same extent as though this provision was therein inserted in so many words.
The brief of counsel for respondents in this case cites authorities holding contrary to the opinion herein expressed but I do not consider these authorities as conclusive under the particular facts as appear here. Our attention is called to a like constitutional provision which is involved here and to a like statute of the State of California and to decisions of the California court in relation thereto, holding that either county had jurisdiction. These cases are referred to in the majority opinion and likewise some additional cases from the same court. Respondents point out that the California statutory provision had been thus adjudicated, prior to the adoption of our constitution and under the decisions of our court we are bound to follow these interpretations of the constitutional statutory provisions of the California court.
In Caldwell v. Thiessen, 60 Idaho 515, 92 P.2d 1047, this court said: "It is axiomatic that a statute adopted from another state will be given the construction and meaning given it by the courts of that state prior to our adoption of it, unless such construction is clearly unreasonable." And in Statev. Taylor, 59 Idaho 724, 87 P.2d 454, we said, "This court, in conformity with the general rule, has held that a statute adopted from another state, is usually but not conclusively, construed in accordance with the decisions of the courts of that state rendered prior to its adoption herein, if their interpretation is reasonable."
However, it does not appear that the constitutionality of the statute in question was squarely presented to the California courts for decision in the cases relied upon by respondents and cited in the majority opinion. A comparison of the facts in those cases with the facts here would serve no useful purpose, and these cases do not determine the constitutionality of the like California statute. Further, I think the construction urged in this case by respondents would be clearly unreasonable, under the facts presented.
This precise question had the careful consideration of the Supreme Court of Oklahoma, in the case of Smith v. State,197 P. 712, and as the holding of the court in that case seems to us reasonable and in conformity with our constitutional safeguards guaranteed to one accused of crime, I quote therefrom, as follows: *Page 358
"The court is impelled to the conclusion reached by the attorney general. Under sec. 20, of art. 2 of the Constitution, a defendant is entitled to a trial by a fair and impartial jury of the county in which the crime was committed, and, where it is easily ascertainable that the crime is committed in one county, as it was in this case, the prosecution must be instituted in the county where the crime was committed. We think the legislature undoubtedly had authority to provide that, where the public offense is committed on the boundary line of two or more counties, or so close thereto as to make it uncertain in which county it was committed, the jurisdiction would be in either county. This would be a proper safeguard to the state, and would not deprive a defendant of any constitutional right, because in such instances the crime could with propriety be regarded as having been committed in either county, as held by the Supreme Court of Illinois, in the case of Buckrice v. People, 110 Ill. 29 supra, but to extend the jurisdiction 500 yards on either side of the county line is clearly an arbitrary and unreasonable act on the part of the legislature, because the surveys of the boundaries of the county are so well known that proof of the venue of an offense is ordinarily easily obtained, and where the offense was not committed on the boundary line of two counties, nor so close thereto as to be doubtful in which county is was committed, the prosecution must be commenced in the county where the undisputed evidence shows the offense was committed. Otherwise, the defendant, by legislative action, could be arbitrarily deprived of the constitutional guaranty afforded him by sec. 20, art. 2, supra. To hold that jurisdiction may be in either county under such provision where the venue is known to the complaining witness, and therefore easily ascertainable by the prosecuting officer before the institution of the prosecution, would in effect grant a change of venue to the state also in contravention of sec. 20, art. 2, supra. For reasons stated, the conclusion is reached that the District Court of Payne County had no jurisdiction of the offense charged against these defendants, and the judgment is reversed, with instructions to the trial court to dismiss the prosecution."
The judgment should be reversed, and the cause remanded for further proceedings, in conformity with this opinion.
Holden, C.J., concurs in this dissent. *Page 359