dissenting.
Because of my conviction that rules which we have adopted are constitutionally improper and declarations to that effect would result in the re-establishment of the statutory scheme relating to jury trials, so that no jury trial is permissible in the magistrate court, I would deny the petition upon its merits but would not dismiss the petition. Its denial, accompanied by declarations invalidating our rules, would in my opinion give to the petitioner all relief to which he is entitled.
I do not look upon the writ of prohibition as a tool to suggest legal error in the judgments or rulings of a trial court, entered in the exercise of its proper jurisdiction. I concede with the majority that the main purpose of this writ is to prevent exercise of a jurisdiction that is entirely lacking or the commission of acts that are in excess of that jurisdiction. I do not consider that an absolute right of trial by jury is guaranteed by either the due process clause of the Federal Constitution or by Article 1, § 10 of our own Constitution. But I do conceive it to be good law that any accused has a. constitutional right to be charged and tried in accordance with applicable and valid statutes or rules. To me that represents due process of law. As said in 16 Am. Jur.2d Constitutional Law § 572, p. 977, “The requirement of due process is met if the trial is had according to the settled course of judicial proceedings, by a court of justice having jurisdiction.” In Thomas v. Justice Court of Washakie County, Wyoming, 538 P.2d 42, 44 (Wyo.1975), four members of this court took it to be the law that “where a court proceeds in an unconstitutional manner the effect thereof is to destroy the jurisdiction of the court” and that if the justice court was there “proceeding in an unconstitutional manner so as to deny petitioner due process of law it would be a proper case for prohibition, provided that there is no plain, speedy, and adequate remedy in the ordinary course of law.” Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411 (1899) is cited as authority for this proposition. In Thomas the petitioner asserted a constitutional right to demand that a lawyer-justice of the peace preside at her preliminary hearing. While we denied the petition for writ, with Mr. Justice Rose dissenting to such denial, our action was a denial upon the merits of the cause, and not a dismissal for want of a justiciable application.
The point I wish to make,, relying on Thomas and Miskimmins, is that whether or not Rule 5(d) is to be considered as having been validly enacted in the exercise of our rule-making power the magistrate acted in excess of his jurisdiction in refusing to be bound by that rule. If the rule is valid, his denial of jury trial resulted in an unconstitutional and therefore nonjurisdictional proceeding which should be prevented. If the rule is invalid, that is not a decision for the magistrate and only this court can make that determination. While I make no claim that in the absence of statute or rule granting such right to trial by jury upon the charges in this case there nevertheless exists a constitutional right thereto, I do say that there is a constitutional right to be tried according to the usual standards and with the same privileges to this defendant as are given to others. It is not denied that Rule 5(d), W.R.Cr.P.J.C. provides “[t]hat there shall be no right to demand a jury trial in municipal courts unless a jail sentence is to be imposed upon conviction * * *.” Relator in this case demanded such a jury; the respondent advised in advance of the trial that he did not intend to impose a jail sentence and therefore rejected his demand for jury. While the italicized language of the rule may be somewhat unfortunate (an oversight for which I am willing along with other members of the court to assume full responsibility) I think it would be a ridiculous construction of this rule to say that it leaves it to the whim or caprice of the presiding magistrate, in advance of trial, without hearing evidence as *702to the nature of the offense, and without knowledge of the facts and circumstances bearing upon the sentence that should be imposed, to decide that no jail sentence is to be imposed. I believe it to be the legislative intent in enacting any statute or ordinance with provision for a jail sentence as a possible punishment for violation, that the discretion whether to impose or not to impose jail sentence should be exercised by the magistrate only after full enlightenment as to the nature of the offense and consideration of all the pros and cons for and against jail sentence. It is a judicial discretion that he is to exercise based upon the particular facts of the particular case after the deféndant has been found guilty. Therefore, I can only construe the rule as providing for a jury trial in those cases where under the applicable statute or ordinance defining the offense a jail sentence is permissible.1
It therefore follows, I think, that when the magistrate interpreted the rule as giving him the authority to determine in advance of trial that no jail sentence would be imposed, however worthy his motives might have been, he was denying Weber the right of trial according to established standards. He was therefore proceeding in an unconstitutional manner, in that he was by arbitrary action depriving defendant of a legal right granted him by appropriate legislation, in this case the rule adopted by this court as applicable to all situations. A magistrate, proceeding in violation of duly enacted statutes, ordinances or rules is under Thomas and Miskimmins proceeding without or in excess of his jurisdiction and therefore prohibition is proper.
This is the basis of Knight v. Superior Court in and for Los Angeles County, 95 Cal.App.2d 838, 214 P.2d 21 (1950) where in a competency hearing the superior court was proceeding to try the matter without a jury as demanded in behalf of the alleged incompetent. California cases had held that denial of a jury trial did not amount to action in excess of jurisdiction. Error in such denial was held correctible by appeal. The court said, however (214 P.2d at 22-23):
“In view of the constitutional right of every citizen to a trial by jury in a proper case, the rule should be re-examined. * * * It is our view that any court which denies the right of trial by jury in a case where any party has the constitutional right to it exceed[s] its jurisdiction.”
A peremptory writ was therefore issued prohibiting the superior court from proceeding in the matter other than by trial with a jury. Although I have found no decision of the Supreme Court of California declaring this rule, I have also been unable to find any decision of that court rejecting the principle, and decisions of the district courts of appeals continue to announce it. See Turlock Golf & Country Club v. Superior Court, 240 Cal.App.2d 693, 50 Cal.Rptr. 70, 71 (1966) and cases cited. The Supreme Court of Montana considers that while the authorities are not uniform, the better view seems to be that “where either the Constitution or statute gives the right to a trial by jury,” and such trial is denied, “the jury constitutes an essential part of the tribunal authorized to determine the facts, and that the court in attempting to determine the facts without a jury exceeds its jurisdiction.” Application of Banschbach, 133 Mont. 312, 323 P.2d 1112, 1113 (1958). In Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479, 481, 16 A.L.R.3d 1362 (1966), the Supreme Court of Arizona takes the same view, and says:
“ * * * Courts favoring this remedy reason that an appeal from the final judgment is not adequate because an appeal will subject the party to the expense and harassment of a trial which may be futile if the appellate court subsequently determines that a jury trial was improperly denied. * * * ”
*703To the same effect is Farmer v. Loofbourrow, 75 Idaho 88, 267 P.2d 113, 114, 41 A.L.R.2d 774 (1954).
The logical merit of these holdings appears clear to me. The “proper case” requirement of Knight is satisfied by the grant of jury trial in Rule 5(d). The constitutional right involved is the right to be tried as the regularly enacted statutes and rules of court require. That constitutional right has been denied by the magistrate through improper interpretation of the rule and the question occurs as to why, if we may ultimately hold that Weber was entitled to a jury in his police court trial (the only place where under our rules he may have such a trial) we should impose upon him the burden of going through a trial in police court without a jury, take an appeal to the district court of Teton County, Wyoming, without a jury, and thence to this court. Moreover, it seems to me that the question is of sufficient importance and has such impact upon the trial of other cases in the municipal courts throughout the state, that it should be decided promptly. The exigencies which are pointed out in Thomas as justifying consideration of the petition, even though the same was denied, are present in this case. I would hold that the remedy by appeal is on its face not an adequate and speedy remedy. The petition then sets forth a good and valid case for issuance of a writ of prohibition and we should take jurisdiction to consider the application for the writ upon its merits.
However, I agree with my Brother Rose that adoption of Rule 5(d) represented an invasion by this court into the field of substantive law. I agree with both his reasoning and the authorities cited that the matter cannot be considered a mere matter of procedure. What we have done is to legislate a right of trial by jury in the police court and take away the statutory right, as held in State ex rel. Suchta v. District Court, 74 Wyo. 48, 283 P.2d 1023 (1955) to have a jury trial in the district court. This, I think, was erroneous. If we have improperly legislated in a field of substantive law, then I think that we should declare our rule improper, vacate the same, as well as any accompanying rules that are pertinent, and permit the minor courts to proceed in a manner that is in keeping with legislation which we have attempted to override.
I do not see why, if constitutional right to trial in accordance with legal procedures is involved, and having taken jurisdiction of the application for prohibition on the ground that constitutional procedures are involved, we may not deny the writ but at the same time make proper declarations that will permit a constitutionally permissible procedure. I conclude, therefore, that while the writ of prohibition should not be issued in this case we should declare that our Rule 5(d), insofar as it purports to grant a right of trial by jury in the municipal court, and Rule 23(a), insofar as it denies the previously statutorily granted right to trial de novo and by jury in the district court upon appeal from the conviction in the municipal court, are null and void. It would further be declared that any purported repeal of statutory provisions applicable to trial of municipal court cases and the appeal thereof is likewise ineffectual, thereby reinstating the statutory procedure as the proper one. I would deny the writ but, having taken jurisdiction of the case for the purpose of considering the propriety thereof, would consider the constitutional questions admittedly raised sua sponte but in an attempt to give full and proper relief to the petitioner, so that full relief can be granted.
. In Hecht v. Carey, 13 Wyo. 154, 162, 78 P. 705, 707 (1904), this court said that interpretation of a statute which involves absurd consequences should be avoided. In Ramsay Motor Co. v. Wilson, 47 Wyo. 54, 65, 30 P.2d 482, 485 (1934) it is said that the legislature will be assumed to legislate only what is reasonable and just. Can we say that in enacting this rule we were not equally concerned with establishing a reasonable and just procedure?