I concur in the result only.
The jurisdiction of the District Court is determined by section 7 of Article 8 of the Constitution of this state. That section reads:
"The District Court shall have original jurisdiction in all matters civil and criminal, not excepted in this Constitution, and not prohibited by law; appellate jurisdiction from all inferior courts and tribunals, and a supervisory control of the same. The District Courts or any judge thereof, shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition and other writs necessary to carry into effect their orders, judgments and decrees, and to give them a general control over inferior courts and tribunals within their respective jurisdictions."
Our legislature has no power to restrict that jurisdiction in any way whatsoever.
The jurisdiction of the Justice of the Peace is determined by section 8 of the same article. This section reads: "The Legislature shall determine the number of justices of the peace to be elected and shall fix by law their powers, duties and compensation. The jurisdiction of justices of the peace shall be as now provided by law, but the Legislature may restrict the same."
Here the legislature is given power to restrict the jurisdiction. To "restrict" is to retain within bounds, to limit *Page 337 (Webster). In other words the legislature may limit the free use of this jurisdiction such as to limit its territorial boundaries.
Our Constitution was adopted in 1896. At that time sections 3019 to 3023, Compiled Laws of Utah, 1888, were in effect and determined the jurisdiction of the Justices of the Peace. This jurisdiction was adopted by section 8 quoted above by the language:
"The jurisdiction of justices of the peace shall be as now provided by law * * *."
When our legislature enacted section 20-3-4, 20-5-2, and 20-5-4, R.S.U. 1933, which state the jurisdictions of the District Court and the Justices of the Peace, it merely recognized that those were the jurisdictions fixed by the Constitution — the latter two sections are almost identical with the sections of the 1888 laws to which reference is made above. Historically, then, there is no basis for believing that the legislature by enacting those sections of the Revised Statutes of Utah, 1933, had in mind any thought of matters of venue. They merely repeated what the Constitution had adopted. The legislature did not, and has no power to determine the jurisdiction of the Justice of the Peace.
Stress has been laid upon two other sections of our Revised Statutes — sections in the Code of Criminal Procedure. They are sections 105-1-4 and 105-16-1, R.S.U. 1933:
"Every public offense must be prosecuted by information after examination and commitment by a magistrate unless the examination is waived by the accused with the consent of the state, or by indictment, with or without such examination and commitment, except:
* * * "(3) Offenses triable in city, justices' and police courts." 105-16-1:
"All public offenses triable in the district courts, except cases appealed from justices' and city courts, must be prosecuted by information or indictment * * *." *Page 338
Section 105-1-4 is under the general provisions of the Code of Criminal Procedure. The word "triable" in paragraph 3 thereof does not mean "which have been tried." It means that if the offense is one that lies within the jurisdiction of the Justice of the Peace, it is one that may be initiated — in whatever court it is initiated — without a preliminary hearing, and by an instrument other than the one designated by our code as an information. To what does this section conform? To section 13 of Article 1 of our Constitution which provides:
"Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate * * *."
That constitutional section recognizes that there were certain offenses which were not required to be prosecuted by indictment. They were those subject to prosecution before a Justice of the Peace. See sections 5305 and 5309, Compiled Laws of Utah, 1888. There is nothing in the wording of section 105-1-4 nor in section 13 of Article 1, upon which it is based, that implies venue as distince from jurisdiction. The question of where a particular action should be initiated is governed by the power of the court to act upon that particular kind of action — so far as this section of the Constitution is concerned.
Section 105-16-1, R.S.U. 1933, quoted above, is the only section from which an inference might be drawn in support of Mr. Justice LARSON'S theories. If we may properly infer from the wording of this section that it was intended that misdemeanors were not to be initiated in the District Court — this inference being the result of a belief that informations are used only after preliminary hearings upon felonies or indictable misdemeanors — then the legislature had modified the situation by enacting section 105-21-5 (Chapter 118), Laws of Utah, 1935, which by implication says that an information may be used for an offense in which there has been no preliminary hearings. In such *Page 339 a case an oath must be taken to the information. This in effect makes the information a complaint. But the writer is of the opinion that section 105-16-1 was not passed with the thought of excluding misdemeanors from the District Court. It was passed merely as an effort to make uniform the procedure as to felonies and indictable misdemeanors, which the legislature contemplated would be the bulk of the trials before the District Court. It is a section enacted to conform to section 105-1-4 and to section 13 of Article 1 of the Constitution, both of which deal with felonies and indictable misdemeanors but not with misdemeanors.
Mr. Justice LARSON rather emphatically draws the line between appellate jurisdiction and original jurisdiction. He states:
"That jurisdiction which is not appellate is original."
Thus they are mutually exclusive. He continues:
"Appellate jurisdiction is the jurisdiction to review the decision or judgment of an inferior tribunal upon the record made in that tribunal, and to affirm, reverse or modify such decision, judgment, or decree."
He continues later in his decision:
"Original jurisdiction as contradistinguished is the right to hear the cause, to make its own determination of the issues from the evidence as submitted directly by the witnesses; or of the law as presented, uninfluenced or unconcerned or limited by any prior determination, or the action of any other court juridicially determining the same controversy. Original jurisdiction as here used means the right of the court to make its own record, its own finding and determination."
Though those principles may be ever so meritorious, they are not applicable under the Constitution and the Code of this state.
For example: section 7, Article 8 of our Constitution (quoted above) gives the District Court "appellate jurisdiction from all inferior courts and tribunals." The Justice *Page 340 of the Peace is an inferior court. An appeal from the Justice of the Peace to the District Court calls for a trial de novo (sections 105-57-43, criminal, and 104-77-4, civil). Upon a trial de novo the District Court makes its own record — its action thereon it within the definition of original jurisdiction as propounded by Mr. Justice LARSON. That original jurisdiction is not appellate jurisdiction — so states my associate. What then is the appellate jurisdiction exercised by the District Court over the judgments of the Justice of the Peace? May I again invite attention to the Compiled Laws of Utah, 1888. Section 3010, subd. 6, thereof speaks of the District Court's "appellate jurisdiction" over cases in the Justice of the Peace courts. I quote the section:
"Its appellate jurisdiction extends to all cases arising in probate or justices' courts; and to all other matters and cases wherein an appeal to it is or may be allowed by law."
An appeal from the justice court to the District Court called for a trial de novo then, as it does now (section 5384. s 95, C.L.U. 1888). Historically Mr. Justice LARSON'S interpretation of "appellate jurisdiction" is not supported in this state.
Another example of the confusion that may arise if we adopt, in this state, the principles proposed by Mr. Justice LARSON: Mr. X is tried for a misdemeanor before a justice of the Peace. He is found guilty. He takes the case to the District Court. It is tried again. He is found guilty. According to the principles proposed this second trial is the exercise of original jurisdiction — not appellate — by the District Court. It is the same as if the defendant were given a new trial before a court having concurrent jurisdiction. That being the case, here is defendant's dilemma: By section 9, Article 8 of our Constitution he is prohibited from going to the Supreme Court, except to question the validity or constitutionality of a statute; and by section 12, Article 1 of our Constitution he is entitled to an appeal *Page 341 which he has not as yet had, if we interpret the District Court proceedings as does Mr. Justice LARSON.
May I suggest that we consider our Code upon appeals in the light of the discussions found in 4 C.J.S. Appeal and Error, pages 74, 79, and 81, §§ 12, 17, and 18. That is to say that we have two kinds of appeals in this state: the old civil law appeal where the case is tried anew; and an appeal which is in the nature of an extended form of writ of error, where the record facts may be reviewed as well as the questions of law. In each case the court to which the appeal is taken acquires only appellate jurisdiction. This conforms to many cases of this Supreme Court wherein the jurisdiction of the District Court on appeal has been limited as appellate jurisdiction and distinguished from the jurisdiction applicable if the proceeding has been initiated there.
If, as the writer believes it to be, the District Court jurisdiction on appeal from the Justice of the Peace is appellate and not original, then any contention that misdemeanors must be initiated before the Justice of the Peace as a matter of venue or as a condition precedent to hearing in the District Court must and should fall. The decisions of this Supreme Court heretofore rendered either deciding or intimating that a misdemeanor may not be initiated in the District Court should be overruled on that point.
In closing I add this: If the misdemeanor is initiated before the Justice of the Peace, defendant, by our Constitution being entitled to an appeal, may appeal to the District Court. He is not entitled to two appeals as the Constitution and the statutes limit him to that one. If the misdemeanor is initiated before the District Court he may satisfy his right to that one appeal by taking an appeal to this Supreme Court.
The lower court was in error. *Page 342