dissenting.
In dissenting from the majority, I concur with my Brother McClintock’s dissent and add these thoughts and observations of my own:
A careful reading of the majority opinion leads inevitably to the conclusion that it holds State ex rel. Suchta v. District Court of Sheridan County, 74 Wyo. 48, 283 P.2d 1023, discussed infra, to not be decisive of the issues here for the reason that the minor court rules have superseded the statutes under which Suehta was decided. Accordingly, as I understand the majority, Suehta is overruled insofar as that opinion holds a *704municipal-court appellant to be entitled to a jury trial at the district court level. The majority says this:
“Weber does claim, however, the benefit of the rules announced in State ex rel Suchta v. District Court of Sheridan County, 74 Wyo. 48, 283 P.2d 1023 (1955), but this contention does not recognize the effect of the Wyoming Rules of Criminal Procedure for Justice of the Peace Courts and Municipal Courts (W.R.Cr.P.J.C.) upon the statutory scheme which was reviewed and relied upon in that case.
I assume the court to be saying, through the message of this quoted material, the following:
Except for the Wyoming Rules of Criminal Procedure for Justice of the Peace and Municipal Courts, the statutes under which Suchta was decided would apply and the rule of Suchta would control, which would mean that upon conviction in municipal court the defendant would have a right to trial de novo and/or a jury trial in district court, all without regard to whether his penalty were to affect his personal liberty.
To put it another way, I read the majority opinion to say:
Mr. Weber — you are in error when you rely upon our decision in State ex rel. Suchta v. District Court, supra, because you seem to have overlooked the fact that the W.R.Cr.P.J.C. have superseded the rule of that opinion and the statutes under which it was decided.
In holding the W.R.Cr.P.J.C. to have overruled or superseded the Suchta decision and the statutes according to which that case was decided, we have, in my judgment, committed the sin of denying a municipal-court defendant his statutorily guaranteed substantive jury-trial right at the appellate level through an unauthorized exercise of our procedural rule-making powers. (See Rule 23(a), W.R.Cr.P.J.C., discussed later herein.) At the same time we have abortively undertaken to grant the municipal-court defendant a municipal-court jury trial by authority of Rule 5(d), W.R.Cr.P.J.C.1 Such right is expressly forbidden by § 5-130, W.S.1957.2 By tampering with jury-trial rights, we have, in my conception of the matter, undertaken to perform a substantive function when this court’s only jurisdiction in this area, under its statutory rule-making powers, is to exercise superintending control of the procedural affairs of the various courts of the state.
Article 5, Section 2, of the Wyoming Constitution, provides:
“The supreme court . . . shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.” [Emphasis supplied]
Section 5-18, W.S.1957, provides that this court may adopt general rules governing
*705“pleading, practice and procedure, in all courts of this state, , . . [Emphasis supplied]
Section 5-19, W.S.1957, provides that
„ “[s]uch rules (as conceived of in § 5-18, supra) shall neither abridge, enlarge nor modify the substantive rights of any person . . . [Emphasis and parenthetical matter supplied]
In direct contradiction to these directives that this court will exercise “superintending control” over the matters of procedure, we have denied municipal-court appellants their substantive right to a jury trial at the district court level through the adoption of Rule 23(a), W.R.Cr.P.J.C., which provides:
“On the Record; No Trial De Novo. . No trial anew in the district court is provided, and all appeals shall be tried on questions of law.” [Emphasis supplied]
The Wyoming Constitution guarantees that the right to a jury trial shall remain inviolate in criminal cases.3 “Criminal cases,” as used in Article 1, Section 9, has been held by this court, in interpreting § 5-136, W.S.1957,4 to include cases originating in municipal court. The statutes of this state (§ 5-136, W.S.1957) provide that appeals from municipal-court criminal cases will be taken to the district court in the same manner as criminal cases taken from the justice court. (See Note 4). Criminal cases appealed from the justice courts are to be tried anew. (See Note 4, § 7-488, W.S.1957.) The word “trial” in § 7-488, W.S.1957, means “jury trial.” (Note 4, supra) Shafsky v. City of Casper, Wyo., 487 P.2d 468, 470.
In State ex rel. Suchta v. District Court of Sheridan County, 74 Wyo. 48, 283 P.2d 1023, 1024-1025, we held that the rights granted under § 5-136, supra Note 4, were rights to a trial de novo and/or jury trial for every defendant who properly appealed *706his case from the municipal to the district court. This, of course, included appeals where only fines had been or were to be imposed, such as the case at Bar. We said:
“By the term ‘criminal cases’ is obviously meant criminal cases under the laws of the state — cases in violation of the laws of the state. 10 Words and Phrases, p. 484 et seq. In other words, when a case of violation of an ordinance reaches the district court on appeal, the violation of such ordinance is, in the eyes of the law, considered to be on the same footing as a crime under the criminal laws of the state, and must, under the foregoing statute, be tried in the same manner. Now trials under the criminal law of this state are jury trials. That is true not only when the case originates in the district court, but also when it originates in a justice court and is then appealed, for on the appeal the trial is de novo, § 15-207, W.C.S.1945, and that term means (unless otherwise specified) that it is on the same footing as though it had originated in the district court. Doster v. State, 195 Tenn. 535, 260 S.W.2d 279; Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692; In re Farlin, 350 Ill.App. 328, 112 N.E.2d 736; Karcher v. Green, 8 Houst., Del., 163, 32 A. 225; Reck v. Reck, Ohio App., 46 N.E.2d 429, 430; 12 Words and Phrases, De Novo, p. 107 et seq. In fact § 10-1101, W.C.S.1945, seems to be all inclusive when it provides: ‘In all criminal cases the jury summoned and impaneled according to the laws in force, relating to the summoning or impaneling of juries in other cases, shall try the accused.’ We find no qualifying exception in our statutes.” [Emphasis supplied]
Therefore, we held, under statutes existing when Suchta was decided and which have never been repealed by the legislature, that cases upon appeal from municipal courts to district courts are to be tried de novo with the constitutional and statutory right to trial by jury inviolate, intact and automatic. This would mean that under applicable statutes and contrary to Rule 23(a), supra, and in the event Mr. Weber were to appeal to the district court from the municipal judge’s adverse decision, his case would be tried anew and to a jury if demanded.
We affirmed this concept in Cisneros v. City of Casper, Wyo., 479 P.2d 198, 200, when we said:
“Under the provisions of the statute [Section 7-488, W.S.1957] on an appeal from a judgment of a police court to the district court, the cause stands for trial anew. . . . ” [Bracketed matter supplied from footnote in text.]
It is my judgment, then, that we have, all in conflict with the constitution, the statutes and the case law, adopted the above-mentioned minor court rules which deny the municipal-court defendants’ trial by jury at any stage in the proceedings where there is to be only a fine in the municipal court. (Rules 23(a) and 5(d), supra) Further, through the enactment of Rule 5(d) (Note 1), we have wrongfully given him a rule-made right of trial by jury in municipal court when this right is specifically denied by statute. (See § 5-130, W.S.1957, Note 2.) In effectuating these rules which undertake to grant and deny municipal-court defendants jury trials, in opposition to the applicable statutory provisions, we have, in my judgment, acted in excess of our procedural rule-making powers and, therefore, in excess of our jurisdictional authority.
PROCEDURAL OR SUBSTANTIVE
The inquiry should properly be resolved in the last analysis by deciding whether or not the issues with which we are concerned present problems of procedural law — or substantive law. If the rules and statutes are in conflict and the rules purport to repeal [“supersede”] 5 the statutes, this can only be accomplished, in my view at least, if the jury-trial rights guaranteed by the constitution and statute are of a procedural rather than a substantive nature. State v. *707District Court, Wyo., 399 P.2d 583. See Article 5, Section 2, Constitution of Wyoming, discussed infra. See §§ 5-18 and 5-19, W.S.1957, relating rule-making powers exclusively to procedural matters, also discussed infra.
In State v. District Court, supra, when contemplating the same problem in circumstances where the Wyoming Rules of Civil Procedure were charged with being in conflict with statutes pertaining to the giving of notice of jury demand, we distinguished between substantive and procedural law when we said, at 399 P.2d, page 585:
“Distinction between procedure and substance has not always been easy, as is amply demonstrated in Federal cases where the court was exercising jurisdiction solely because of the diversity of citizenship of the parties. 1 Barron and Holtzoff, Federal Practice and Procedure, §§ 8 and 138 (1960); 35A C.J.S. Federal Civil Procedure § 25. This is true in other fields, 52 C.J.S. Law, p. 1026; 1 C.J.S. Adjective Law, p. 1468. However, as bears upon matters such as the one before us, the statement in Kellman v. Stoltz, N.D.Iowa, 1 F.R.D. 726, 728, is significant:
“ '* * * It may * * * be assumed that the term “substantive law” is not mathematically exact, but as respects both the terms “procedure” and “substantive law” there is a possible twilight zone. Examination of many authorities leads me to conclude that substantive law as constitutionally, legislatively and judicially recognized, includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property, and quite generally as fixing the type of remedy available in case of invasions of those rights. As to the term “procedure”, I conceive it to include those rules and forms applicable in the administration of the remedies available in cases of invasion of primary rights of individuals in Courts or other lawfully constituted tribunals and agencies. Such rules include both pleading and practice, including all rules and forms which govern the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution. * * * >
Briefer definitions will perhaps suffice for our purposes here:
«i* # * The substantive law is that part which creates, defines, and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. * * * ’ Mix v. Board of Com’rs of Nez Perce County, 18 Idaho 695, 112 P. 215, 220. ‘Courts generally agree in defining the terms “substantive” and “adjective” that “substantive” law creates, defines, and regulates rights as opposed to “adjective” or “procedural” law which provides the method of enforcing and protecting such duties, rights, and obligations as are created by substantive laws. * * * ’ In re McCombs’ Estate, Ohio Prob., 80 N.E.2d 573, 586.
More specific to the present question, the court said in Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686, 689, that ‘procedure’ is the machinery for carrying on the suit, including pleading, process, evidence, and practice, and held that a statute relating to the proper method of obtaining jurisdiction in respective instances was a part of the law of procedure and not of substantive law. Similarly, in the case before us, the question of the requirement of serving upon the other parties a demand for a trial by jury is one of procedure and is governed by the rules.”
In Dyer v. Keefe, 97 R.I. 418, 198 A.2d 159, the Supreme Court of Rhode Island was concerned with a proceeding on a writ of certiorari to review an order of the Superior Court striking a claim of jury trial. In holding that a right of jury trial, being inviolate under the constitution; was beyond the power of the legislature to abolish, the court, while granting that reasonable conditions could be placed upon its exercise, held the right to trial by jury to be a *708question of substantive rather than procedural law. Procedural law, the court said, is those things embraced by “pleading,” “evidence” and “practice.”6 It is the machinery for carrying on the suit. The court said:
“ . . . Unlike the acts within those categories, the claim of jury trial has nothing to do with the institution, progress or conclusion of the litigation. Rather it has to do solely with the choice of the tribunal which will try and decide the facts. It is therefore not in the nature of a plea, a motion or any other step in procedure but simply the formal assertion of a substantive right guaranteed by organic law.” Ibid., pp. 161-162. [Emphasis supplied]
In Cleveland Ry. Co. v. Halliday, 127 Ohio St. 278, 188 N.E. 1, 2, the rules of court provided for less than a 12-man jury while the statute provided that jury trials would be held with a jury of 12. The trial court permitted the case to be tried under the rules rather than the statute. The appellate court reversed and the supreme court sustained the appellate court, saying:
“The question here presented is whether a rule of court as to waiver of jury trial prevails over a valid statutory enactment upon that subject. This question requires the consideration of the scope of the rule-making power of the court. As held both by this court and by other courts of last resort throughout the country, aside from common-law or statutory grant, the power to make rules of procedure is inherent in the judicial department. (with citations).” Ibid., p. 2.
Referring to an Ohio statute similar to our §§ 5-18 and 5-19, W.S.1957, supra, the Ohio Supreme Court then said:
“This statute relates in its specific terms to rules dealing with procedural matters and the business of the courts. The rule-making power also extends to procedural matters only . . . But the right to a jury trial does not involve merely a question of procedure. The right to jury trial derives from Magna Charta. It is reasserted both in the Constitution of the United States and in the Constitution of the State of Ohio. For centuries it has been held that the right of trial by jury is a fundamental constitutional right, a substantial right, and not a procedural privilege. Martin v. Windsor Hotel Co. [10 Hun 304], 70 N.Y. 101. Hence section 1558 does not authorize a rule of court defining waiver of trial by jury in courts of common pleas. . Ibid., p. 3.
⅛ Sfc * ⅜! * Sj<
“We are conscious of the practical exigencies which led the court of common pleas of Cuyahoga county to promulgate the rule in question. No criticism is made of its motives, but holding as we do that trial by jury is a substantial right, and not a procedural matter, holding as we do that the statute has specifically outlined the way in which a jury may be waived, we are compelled to rule that this rule of court is invalid. It conflicts with general law, and it is not authorized under the rule-making power.” Ibid., p. 3.
In Hardamon v. Municipal Court in and for City of Boulder, 178 Colo. 271, 497 P.2d 1000, the accused brought mandamus class action seeking to stay prosecution in municipal court for a traffic offense and to compel the municipal court to grant him and others of his class a jury trial. The district court of Boulder County dismissed and the accused appealed. The supreme court held that legislature’s grant of jury trial in petty-offense cases involved substantive matter of statewide rather than local concern; thus, the accused was entitled to a jury trial even though such right had been expressly denied by home-rule charter.
The supreme court said, at 497 P.2d 1001-1002:
“Thus, we have squarely presented to us for resolution the question of whether, in cases involving petty offenses, there is *709a right to a jury trial under Session Laws of Colorado 1970, Chapter 44, in a municipal court of a home rule city whose city charter has expressly denied such right. In other words, is the granting of a jury trial in petty offense cases a matter of statewide concern, or a matter of local and municipal concern the control of which falls within the domain of a home rule city under the authority granted by Article XX of the Colorado Constitution? We disagree with the trial court’s judgment that the matter is one of local and municipal concern, and therefore reverse.”
The court went on to say of Article XX of the Colorado Constitution:
“ . . . This section empowers home rule cities to legislate upon, provide, regulate, conduct and control the creation of their municipal courts, the definition and regulation of the jurisdiction of the courts, the powers and duties thereof, and the election or appointment of court officers. This constitutional authority, broad as it is concerning the creation, organization and administration of municipal courts, is limited in scope to those aspects of court organization and operation which are local and municipal in nature and does not empower home rule cities to deny substantive rights conferred upon all of the citizens of the state by the general assembly.
“ . . . We simply say that the vitality of a substantive right, such as the right to a jury trial, conferred upon all of the citizens of the state by the legislature, should not depend upon the court in which the citizen attempts to exercise it
“The trial court in its findings, in addition to holding the granting of a jury trial a matter of local or municipal concern, found that the matter of jury trials was one of practice and procedure and that under the Colorado Constitution, Article III, relating to the division of powers, only the judiciary and not the general assembly could control the right to jury trials; and for the general assembly to legislate in the field of court practice and procedure would be a violation of Article III. We reject this reasoning, having held the right to a jury to be substantive and not procedural.” [Emphasis supplied]
These concepts expressed by the Ohio, Rhode Island and Colorado Supreme Courts square in all respects with the definitions of substantive and procedural law as adopted by this court in State v. District Court, supra.
It is undeniably the law that court rule-making is a procedural grant of authority. Rights to a jury trial are matters of substantive law. Courts cannot lawfully exercise their rule-making powers in a manner which will deny defendants in Wyoming municipal courts their rights to jury trial upon appeal to the district courts.
I would conclude with these observations:
As can be seen, I do not consider the great concern in this proceeding to be whether or not the petition for a writ of prohibition is granted or denied — whether or not it is dismissed or not dismissed. I see the larger issue to be centered in the fact that the majority of the court insists that the quoted language in paragraph two of the first page of this dissent must remain in the opinion. To me, this imparts a dangerous and improper usurpation of judicial power. That paragraph says — I believe— that this court can, through its rule-making authority — deny the citizens of this state a jury trial even though guaranteed by statute. Jury-trial rights are substantive. We have no authority to tamper with the substantive law through our rule-making authority.
I see the majority opinion as an extension of the philosophy expressed in Allen v. Allen, Wyo., 550 P.2d 1137, at 1142, where the majority decided the appeal upon an issue not raised by the parties and said:
“We are not a bit concerned that the matter of judicial estoppel was not raised in the lower court or argued by either of *710the parties. This court has general superintending control over all the courts of the state and the Wyoming judicial system in general. It is our duty to protect its integrity and prohibit dealing lightly with its proceedings. We are at liberty to decide a case upon any point which in our opinion the ends of justice require, particularly on a point so fundamental that we must take cognizance of it.” [Footnote omitted]
I see it as asserting the same type of unbridled prerogatives as the majority of this court exercised in Richmond v. State, Wyo., 554 P.2d 1217, where the defendant had preserved his federal constitutional grounds for appeal and we out-of-hand rejected his right to appeal an alleged error which the appellant charged to be in violation of rights guaranteed to him by the Constitution of the United States.
I cannot subscribe to this trend which I read to be an improper, unauthorized and wrongful exercise of the power of the judiciary.
Here, as I see it, we have withdrawn a defendant’s statutorily guaranteed right to a trial by jury by wrongfully asserting our procedural rule-making power. I agree with Justice McClintock that this court lacks the jurisdiction to deny defendant Weber his right to trial by jury — the statutes pertaining to the subject being what they are.
I would hate reached the same result as suggested by Justice McClintock while at the same time deleting the paragraph of the majority opinion with which this dissent is concerned. Lastly, I would urge this court to vacate the objectionable minor court rules so that municipal-court defendants’ jury-trial rights would thereby be unquestionably preserved according to and under the appropriate existing statutory provisions.
. Rule 5(d), W.R.Cr.P.J.C., provides:
“(d) Jury in Municipal Court. There shall be no right to demand a jury trial in municipal courts unless a jail sentence is to be imposed upon conviction; but in all other respects, except as otherwise provided, the trial shall be conducted in like manner as criminal cases are tried before justices of the peace.” [Emphasis supplied]
As a parenthetical matter, I would suggest that a municipal judge could not — under any circumstances — presentence Weber. There is no logic conceivable by which a judge could decide that a defendant will not go to jail prior to hearing the evidence. This would make his decision-making a hollow mockery. Additionally, Rule 18, W.R.Cr.P.J.C., entitled “SENTENCE AND JUDGMENT,” provides:
“(a) Imposition of Sentence. After conviction or a plea of guilty, sentence shall be imposed without unnecessary delay. Pending sentence the justice may commit the defendant or continue or alter the bail. Before imposing sentence the justice shall afford counsel an opportunity to speak and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of the punishment.” [Emphasis supplied]
. Section 5-130, W.S.1957, provides:
“Cases in police court tried without jury; trial conducted as in criminal cases before justices of the peace. — Cases in the police court for violations of city ordinances shall be tried and determined by the police justice without the intervention of a jury . .
. Article 1, Section 9, of the Wyoming Constitution provides:
“Trial by jury inviolate. — The right of trial by jury shall remain inviolate in crimina] cases, but a jury in civil cases in all courts or in criminal cases in courts not of record, may consist of less than twelve men, as may be prescribed by law. Hereafter a grand jury may consist of twelve men, any nine of whom concurring may find an indictment, but the legislature may change, regulate or abolish the grand jury system.” [Emphasis supplied]
It was said in Johnson v. State, Wyo., 532 P.2d 598, 601 (1975):
“For the reasons stated in Arnold v. State, 1957, 76 Wyo. 445, 306 P.2d 368, 65 A.L.R.2d 839, jury and bailiff expenses, however, may not be taxed as costs of prosecution against the convicted defendant. The right to trial by jury in criminal prosecutions must be kept inviolate. Art. 1, § 9, Wyo.Const." [Emphasis supplied]
The following is quoted from Arnold, supra this note, at pages 376-377 of 306 P.2d:
“, . . The right to trial by jury in criminal prosecutions is inviolate and may not be hampered either directly or indirectly. . . ”
. Section 5-136, W.S.1957, provides:
“Appeals from justice’s court. — Appeals from the judgment or sentence of such police justice may be taken to the district court in the same manner as is now provided by law for appeals from justices’ courts in criminal cases, and shall be dealt with by the courts as criminal cases,"
Section 5-136, supra, makes the appellate justice of the peace statutes applicable to appeals from municipal court to the district court, and therefore § 7^448, W.S.1957, is pertinent. This section provides:
“Trial in district court. — The cause, when thus appealed, shall stand for trial anew in the district court in the same manner that it should have been tried before the justice, and as nearly as practicable as an issue of fact upon an indictment, without regard to technical errors or defects, which have not prejudiced the substantial rights of either party, and the court has full power over the case, the justice of the peace, his docket entries, and his return, to administer the justice of the case according to law, and shall give judgment accordingly.”
The word “trial” in this section means “jury trial.” Shafsky v. City of Casper, Wyo., 487 P.2d 468.
Section 5-121, W.S.1957, provides:
“Appeals to district court; cities affected. —In addition to all other methods heretofore provided by law, an appeal from the judgment or sentence of a police justice in any city or town operating under a special charter or commission, commission manager or manager form of government, may be taken to the district court in the same manner as is now provided by law for appeals from justice courts in criminal cases, and shall be dealt with by the courts as criminal cases.”
. According to Rule 29, W.R.Cr.P.J.C., the following sections of Wyoming Statutes 1957 have been “superseded,” namely: § 5-136, § 5-121, and § 5-130.
. “Pleading, practice and procedure” is the language of our § 5-18, W.S.1957, which grants and defines the areas of rule-making for this court.