I concur in that part of the majority opinion which holds that the charge in the information is based upon the third subdivision of C. S., sec. 5276, and that in a prosecution under this subdivision it is not necessary to allege or prove that such false representation was made with intent to deceive. The gravamen of the charge is the wilful and intentional making of a false report, which the statute denounces as a felony, regardless of the purpose for which such false report is made.
I also agree with that part of the majority opinion, written by Mr. Justice William E. Lee, which holds that the motion to quash the information properly raised the question that the court was without jurisdiction of the subject matter of this action. The record on this appeal presents this jurisdictional question and this court should decide it. In the motion to quash, appellant showed that the public prosecutor was attempting to try him upon a charge that had been previously considered and ignored by a grand jury, in violation of that part of art. 1, sec. 8 of the constitution, which reads:
"And, Provided further, That after a charge has been ignored by a grand jury, no person shall be held to answer or for trial therefor upon information of the public prosecutor."
The motion to quash having been denied, during the trial appellant renewed his challenge to the jurisdiction of the court and again offered to show that the charge upon which the information is based had been previously ignored by a grand jury.
There can be no question but what this constitutional provision intends to bar and absolutely prohibit the public prosecutor from prosecuting one accused of crime after the charge has been ignored by a grand jury. With the wisdom of this organic act we are not concerned. *Page 611
"Where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself." (Davis v. Burke,179 U.S. 399, 21 Sup. Ct. 210, 45 L. ed. 249.)
If an information could not be filed, the alleged information presented no question to the trial court that called its powers into action, except to require it to deny jurisdiction and dismiss the proceeding. Courts in other jurisdictions having statutory provisions like this constitutional provision have uniformly so held.
This section of the constitution is self-executing, is complete in itself and needs no further legislation to put it into effect. (Davis v. Burke, supra.) It follows that the public prosecutor was absolutely without legal authority to file an information charging the same offense that had been ignored by the grand jury, which would confer jurisdiction upon a court to try the accused for said offense. (Ex parte Hayter,16 Cal. App. 211, 160 P. 370; Ex parte Williams, 116 Cal. 512,48 P. 499.)
The rule announced in Elliott v. Peirsol, 1 Pet. (U.S.) 328,7 L. ed. 164, is quoted with approval in Williams v. Sherman,36 Idaho 494, 212 P. 971, wherein it is said:
"Where courts are without jurisdiction of the subject matter upon which they assume to act, their proceedings are absolutely void. They constitute no justification, and all persons concerned in executing such judgments are in law trespassers."
Bailey on Jurisdiction, p. 1, sec. 1, says that:
"Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit; to adjudicate or exercise any jurisdictional power over them. The question of jurisdiction must be considered and decided before the court can move one step further in the cause, as any movement is necessarily the exercise of jurisdiction."
15 C. J., 723, sec. 13, defines jurisdiction as being "the authority to hear and determine a cause; the power to hear *Page 612 and determine issues of law and of fact; the authority by which judicial officers take cognizance of and decide causes; the authority to hear and decide a legal controversy, etc."
7 Rawle C. L. 1029, sec. 57, says: "The word 'jurisdiction' (jus dicere) is a term of large and comprehensive import, and embraces every kind of judicial action, and hence every movement by a court is necessarily the exercise of jurisdiction. In the sense, however, in which the term ordinarily is used jurisdiction may be concisely stated to be the right to adjudicate concerning the subject matter in a given case."
C. S., sec. 8878, provides that:
"The objections to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty, or after the trial in arrest of judgment."
In Elliott v. State, 1 Ga. App. 113, 57 S.E. 972, that court held that the failure of the grand jury to find a true bill is a bar to any further prosecution of the same person for the same offense, whether under the same or another name or charge, and such defense may be pleaded in bar or given in evidence under the general issue.
In Terrill v. Superior Court, 6 Cal. Unrep. 398, the court, in construing California Penal Code, sec. 1008, which makes a demurrer to an indictment final and a bar to another prosecution for the same offense, unless the court orders the same resubmitted to the same grand jury, held that where the charge was submitted to the same grand jury, the court was without jurisdiction to try the accused upon the indictment, and it issued a writ of prohibition against the judge who was proceeding to try the case.
In Ex parte Hayter, supra, the court, considering this statutory provision upon a writ of habeas corpus, held that after a demurrer is allowed, the judgment is final upon the indictment and a bar to another prosecution, unless the court directs the case to be resubmitted to another grand jury, and further, that such provision is mandatory and a failure to obey it on the part of the prosecuting attorney *Page 613 would be a violation of duty and subject him to removal from office.
This court, speaking through Rice, J., in State v.Steensland, 33 Idaho 529, 195 P. 1080, 13 A.L.R. 1442, said with reference to the statute of limitation, that the state does not offer a privilege which requires any action on the part of the accused either to accept or reject; on the contrary, the state has seen fit to deprive itself of the right to prosecute in all cases coming within the terms of the statute and that the time within which the offense is committed thus becomes a jurisdictional fact in all cases subject to limitation.
This same principle applies to the case at bar. The state has seen fit, by its organic law, to deprive itself of a right to prosecute anyone upon a criminal charge after such charge has been ignored by a grand jury, and the question of whether such a charge has been ignored is always a jurisdictional one.
Cooley, in his Constitutional Limitations, 7th ed., p. 576, in discussing this question, says the law creates courts and upon considerations of general public policy defines and limits their jurisdiction; and this can neither be enlarged nor restricted by the act of the parties. Accordingly, where a court by law has no jurisdiction of the subject matter of a controversy, a party whose rights are sought to be affected by it is at liberty to repudiate its proceedings and refuse to be bound by them, notwithstanding he may once have consented to its action. This right he may avail himself of at any stage of the case, and the maxim that requires one to move promptly who would take advantage of any irregularity does not apply here, since this is not mere irregular action, but a total want of power to act at all.
Black on Judgments, vol. 1, p. 326, says:
"It is a familiar and universal rule that a judgment rendered by a court having no jurisdiction, of either the parties or the subject matter, is void and a mere nullity, and will be so held and treated whenever and wherever and for *Page 614 whatever purpose it is sought to be used or relied on as a valid judgment."
7 Rawle C. L. 1042, sec. 745, says:
"Where judicial tribunals have no jurisdiction of the subject matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings; and in fact it may be raised for the first time on appeal. A court will recognize want of jurisdiction over the subject matter, even if no objection is made, and therefore, whenever want of jurisdiction is suggested by the court's examination of the cause or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction it is powerless to act in the case."
16 C. J. 184, sec. 257, states the rule thus:
"The objection that the court has no jurisdiction of the subject matter is not waived by plea or by going to trial, and may be raised on motion in arrest of judgment, on appeal, or by petition for writ of habeas corpus."
At page 844, sec. 164, it further says:
"An absolute want of jurisdiction of the subject matter, or cause of action, cannot be waived."
And at page 850, sec. 169:
"Although successive motions questioning the jurisdiction are not ordinarily entertained, the question of jurisdiction is always open for determination, even though there may have been in the same case prior rulings of the same judge or of another judge sustaining the jurisdiction."
And at page 851, sec. 170:
"When at any time or in any manner it is in good faith represented to the court by a party or an amicus curiae that it has not jurisdiction, the court will examine the grounds of its jurisdiction before proceeding further." *Page 615
The authorities, including this court, generally hold that a question that goes only to the jurisdiction of the person, or relates to a mere irregularity in the procedure that could have been corrected had the objection been made at the proper time and in the proper manner, is waived unless this has been done. An objection to an information filed by a public prosecutor on the ground that the defendant had not been given a preliminary hearing prior to the filing of the information is generally held to be waived, unless such objection has been interposed in due time, so that the defect in the proceedings could have been corrected. (State v. Collins, 4 Idaho 184, 38 P. 38; Laffey v.People, 55 Colo. 575, 136 P. 1031.) But where the state has, by its constitution, or even by statute, prohibited the filing of an information by a public prosecutor or the resubmission of a charge that has been ignored by a former grand jury, except upon order of the court, as in the California cases referred to, or where the statute fixes a definite time within which an information shall be filed or an indictment found, it has deprived itself of the power to act in such cases and there can be no waiver, for as said in State v. Steensland, supra, the state has deprived itself of the power to act. If it were otherwise, a citizen might be deprived of a right which the constitution gives him and courts might exercise jurisdiction of a subject matter where they are forbidden to do so.
This extended discussion and citation of authorities in support of a principle so well settled would seem to be a work of supererogation. "Jurisdiction of the subject matter," as that term is applied to the courts, has always meant the power to hear and determine the particular matter in controversy. When a court is without this power, or is attempting to exercise its powers in contravention of a positive prohibition of law, it is impotent to act and is without a semblance of authority to do anything more than deny to itself jurisdiction to act.
In the case at bar, the defendant was tried upon an information that is a nullity, because neither the public prosecutor *Page 616 nor anyone else had the power to make the charge, and hence no charge was made, and the verdict of guilty and the judgment of conviction thereon are void.
Petition for rehearing denied.