On Petition for a Rehearing.
Noggle, O. J.,delivered the opinion.
In this case the opinion of the supreme court, affirming the judgment of the district court, was delivered bj Justice Kelly on the twenty-sixth day of January, 1870. After-wards and during the same term of the supreme court, the appellants filed their petition for a re-argument. In the said petition of the appellants no reasons are given, or authorities referred to, other than those álready considered and passed upon by the court. The petition, therefore, offers no ground for a change in the judgment of the court, or for granting a re-argument.
The history of the case sufficiently appears in the opinion of the court delivered as aforesaid. We may have great respect for decisions of the supreme courts of other states in deciding cases similar in principle, and particularly California, because our laws are generally copies of laws of that state. The laws of California are founded upon the constitution of that state; our laws are founded upon our constitution, the organic act. California never had an organic act. That state never had a territorial organization under any such act. Ohio, Indiana, Illinois, Michigan, Wisconsin, Iowa, Minnesota, and many other territories have been organized under organic acts like ours, and not one of the territories of the United States excepting Nevada ever attempted to confer upon justices of the peace greater jurisdiction in criminal than in civil matters, and the opinion of Justice Brosnan, of the supreme court of Nevada, indicates the respect of that court for the law.
We see no reason why the court should not adhere to the decision made in the case upon the first hearing. From the time the organic act took effect or went into operation, the district courts were, and still are courts of general jurisdiction, with power and authority sufficient to try, convict, and punish felonies and misdemeanors. Among other things, *341it is provided in section 9 of said organic act, that “the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be limited by law. Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction.”
We understand the organic act to be the fundamental law of the territory, within the spirit and meaning of which the legislative power must keep, and beyond which the territorial law-making power can not legally go. Under said section 9 the legislature might take from the district courts so much of their original common law jurisdiction, in criminal as well as civil cases, as it thought proper, and give such jurisdiction to justices of the peace. “Provided, That justices of the peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars.”
In section 633 of the laws of the second session, on page 196, the legislature have attempted to limit the jurisdiction of justices of the peace in ten different cases, providing carefully in each case that the sum or damages claimed shall not exceed one hundred dollars.
In this section the legislature have attempted, in violation of the organic act, to confer upon justices of the peace equity powers, by providing “for the foreclosure of any mortgage, or the enforcement of any lien on real or personal property, when the debt secured does not exceed one hundred dollars.”
No one will attempt to argue that this is not an assumption of power attempted to be conferred by the legislature upon justices of the peace, expressly prohibited by the organic law. This leads to a more careful examination of the six hundred and thirty-fifth section of this law, which confers criminal jurisdiction upon justices of the peace. *342By this law, we find justices of tbe peace authorized to hold courts for the trial of misdemeanors, punishable by fines not exceeding five hundred dollars.
Did congress intend to allow the legislature to confer upon justices of the peace criminal jurisdiction ? and, if it did, was it the intention of eongress that it should limit their jurisdiction in criminal as in civil cases ?
It is frankly admitted by counsel upon the argument, that the first part of the paragraph of section 9 of the organic law, preceeding the “proviso,” has reference to criminal as well as civil cases, and although the only office that the “proviso” in this ease can perform, under any known rules of construction, is to qualify that part of the paragraph preceeding the “proviso,” still the counsel for the defendants insist that all that part of the paragraph following the “ proviso,” refers only to civil cases, notwithstanding no such language is used.
In every proceeding in coart against a criminal, when by law a fine may be imposed for any amount, no matter whether that amount be great or small, the extent of the amount of fino that may be imposed.may be properly construed to be the sum in law claimed by the prosecution, and when the law imposes a fine exceeding one hundred dollars, jurisdiction can not be conferred upon a justice of the peace in such a case.
Section S'of the organic law either thus restricts the legislature or it entirely fails to confer upon the law-making power the right to pass any law, conferring, limiting, or fixing the jurisdiction .of justices of the peace in criminal cases. If that portion of section 9 of the organic law following the “proviso” has no reference to criminal offenses, by what rule of construction can we understand that all that portion of the paragraph that precedes the “proviso” refers to criminal as well as civil matters.
It seems so clear that there can scarcely be room for a doubt that if that which follows the “proviso” refers only to civil matters, that which precedes it must do the same and can do no more. If such is the case and it refers only to civil matters, then the legislature did not possess the *343power to confer upon justices of the peace any jurisdiction to bear, try, and determine criminal matters, and that being so, there can no longer be a doubt that the district court still retains and may entertain original jurisdiction in all misdemeanors as well as felonies. Such would be a strict construction of the act.
The organic law places no more direct restriction upon the legislature in limiting the jurisdiction of probate courts. In the case of Landon v. Bartly, tried in Boise county, before Chief Justice McBride at the October term, 1865, as may be seen by referring to 1 Idaho reports, 219, by Cum-mins, the court unhesitatingly declared the act of the legislation conferring civil and criminal jurisdiction upon probate courts, unauthorized, null, and void, and for such reasons as do most fully sustain the doctrines contended for in the opinion of the court in this ease.
We are told that common law offenses do not exist against the general government; this is true, and we do not see how it could be claimed otherwise. Legal gentlemen understand that our United States district and circuit courts are courts of limited jurisdiction, and do not in any general sense possess common law jurisdiction.
The case at bar is not pending in a United States court; but it is pending in a territorial court, established by act of congress, and the offense charged in the indictment is made a misdemeanor at common law, and also by the statute law of the territory, and no such offense is created or known under the laws of the United States. The case was commenced and tried in a court of general jurisdiction, original and unlimited, like the state, district, or circuit courts of a state in the union. It is true that the organic act provides, that “each of the said district courts shall have and exercise the same jurisdiction in alteases arising under the constitution and lav/s of the United States as is vested in the circuit and district courts of the United States.” This does not change the name of the district court of the territory; it is a mere addition to the powers of that court, without affeeting its organization. As these questions are not in this case, it is unnecessary to comment further upon them. *344The district courts of Idaho territory having been created as common law courts by the organic law, when fully organized for the transaction of legal business, were then courts of record, possessing general and unlimited criminal as well as civil jurisdiction; then they had the power to cause to be apprehended, to try, convict, and punish any offender guilty of felony or of a misdemeanor of the first class mala in se, or penal at common law.
Misdemeanors are divided into two classes: 1. Such as are mala in se, or penal at the common law; 2. Such as are mala prohibila, or penal by statute. (1 Whart. Am. Grim. L. 2.)
“Whatever mischievously affects the person or property of another, or openly outrages decency, or disturbs public order, or is injurious to public morals, or is a breach of official duty, when done corruptly, is the subject of indictment and belongs to the first class of misdemeanors, mala in se, or penal at common law.” (1 Whart. Grim. L. 2.)
On page 3 of the same book, Wharton says: “The consequence was that whenever a wrong was committed, which, if statutory remedies alone were pursued, would have been unpunished, the analogies of the common law were extended to it, and it was adjudged, if the reason of the case required it, an offense to which the common law penalties reached.”
Punishment of offenses at common law were just as complete before there was any statute of punishment enacted, as afterwards. We may repeat that the books in which the law should be found are greatly at fault, or misdemeanors of the first class, “penal at common law,” may still be punished at the common law; notwithstanding a statute may have been enacted providing for a different punishment of the same offense, unless the legislative act clearly and explicitly takes away the right of trial at common law, or from common law courts, by positive enactment within 'the constitutional authority of such legislature, the common law power of the court can not be destroyed by mere implication.
The errors contended for in this case consist in a failure to understand the distinction between the two classes of mis*345demeanors; of those penal at common law, and those penal by statute; “wherever a statute creates an offense and expressly provides a punishment, the statutory provisions, as will be seen more fully hereafter, must be followed strictly and expressly.” * * * “Where a statute attaches a new penalty to that which was an offense at common law, either the remedy by statute or that at common law can be pursued.” * * * “And if the statute specify a mode of proceeding different from that by indictment, then if the matter were already an indictable offense at common law, and the statute introduced merely a different mode of prosecution and punishment, the remedy is cumulative, and the prosecutor has still the option of proceeding by indictment at common law, or by the mode pointed out by statute.” (1 Whart. Am. Crim. L. 10.)
This is clearly so, unless by direct and positive enactment the jurisdiction has been taken from the common law court which has not been done in Idaho territory. The first chapter of Sedgwick on statutory and constitutional law, from page 1 to 25, and the first chapter of Wharton’s American criminal law from page 1 to 18, afford much valuable authority in support of the foregoing propositions.
Unless the organic act confers upon the legislature the power to give justices of the peace criminal jurisdiction to hear, try, determine, and punish crimes and misdemeanors, then clearly it is not in the power of the legislature to' confer upon justices of the peace any such jurisdiction. If the organic act does not clearly and explicitly give the legislature the power to confer such jurisdiction, then a justice of the peace, in criminal matters, is a mere peace officer and an officer for the examination of offenses, for the purpose of holding offenders to bail, etc., and has no right or power to hear, try, or determine any criminal matter whatever, and all laws, assuming to confer upon justices of the peace such jurisdiction are without authority and void, and can have no force and effect. Admitting, however, that the law which attempts to confer jurisdiction upon justices of the peace in such cases as this is a valid and binding law, still the prosecution would be at liberty to proceed in either *346court, unless the jurisdiction is taken from the district court by a direct and positive law, and until such a law is passed the jurisdiction of the two courts in such matters is concurrent.
While we are told in this case that the provisions of the statute must be strictlyfollowed, we are also referred to page 405 of Sedgwick on Statutory and Constitutional Law in support of the declaration aforesaid. We are unable to so understand the law from this authority. On this page (405) Sedgwick says: “The analogy of these rules holds good in the criminal law. Thus when an offense intended to be guarded against by statute, is punishable before the making of any statute prescribing a particular method of punishment, then such particular remedy is merely cumulative, and does not take away the former remedy.” The offense charged in this indictment being a case of mischievously destroying the property of Eobie and Eossi, it was a misdemeanor of the first class, penal at the common law, mala in se, and it is not a misdemeanor of the second class penal by statute, mala prohibita; therefore the reference can not strengthen the defendants’ case, but clearly sustains our decision.
Misdemeanors of petty grades are punishable in justices’ courts; misdemeanors of higher grades are subject to indictment, and punishable by fine above the jurisdiction of justices of the peace. Suppose we adopt the defendants’ theory that all misdemeanors are punishable by fine, etc., not exceeding five hundred dollars, and therefore not indictable; can the justices punish by a large fine? Are there no greater misdemeanors? If we are not mistaken there are several punishable by larger fines. Section 101, on page 496 of the first session laws, names an offense punishable by fine in the sum of two thousand dollars. Section 13, on page 49 of the fourth session laws, names a crime punishable by a fine not exceeding one thousand dollars, and so we might extend the reference, but sufficient has been noticed to show that there are offenses known as misdemeanors that can only be tried in the district court after *347first having been indicted, because of a punishment by a fine larger than five hundred dollars.
Our organic act is in substance like the acts for the organization of all the other territories. The same provisions and the same “proviso” that is in section 9 of our act is substantially the same in each of the acts organizing all other territories since the organization of the north-west territory. The language of each being substantially like section 9 of our act. The legislatures of all the territories in limiting the jurisdiction of justices have, with a single exception, construed such provision in their organic acts as a restriction in criminal as well as civil eases, and so far as reference has been made in the argument on the part of the defendants, appellants, it is not contended that any of the territories heretofore organized under a similar law, with the exception aforesaid, has ever undertaken to confer upon justices of the peace greater jurisdiction in criminal than in civil matters.
If this power, under the language of the act, was even doubtful, it has been so long and so uniformly adopted and acquiesced in, that it has become a law settled and approved by usage and custom. It is now rather late to declare, that the organic law has no reference to criminal matters, and therefore the legislature may, without regard to any law of congress, confer upon justices of the peace, in criminal matters, any jurisdiction thought proper. In other words, is it of less importance — does it require less experience, or less legal ability, to conduct the trial of an offender charged with crime that may be punished by a fine of one hundred dollars, than it does to adjudicate books of accounts, a promissory note, or any other civil demand of one hundred dollars? Or, are criminal matters and criminal prosecutions more important to both the people and the offender, and are they generally more complex and difficult to dispose of, than actions growing out of such contracts as usually come before a justice of the peace ? These are questions of legal importance to the law-abiding citizens of this territory, and they have a right to have them fairly and candidly answered by the court. In the language of Justice *348Brosnan, in delivering the opinion of the supreme court of Nevada (1 Nev. 141), this court may answer these important questions of jurisdiction by saying, that “when the law limits the jurisdiction in the more simple action to a certain fixed amount, it would reasonably follow a fortiori, that the law would equally limit it in the most complicated case.
It is hardly fair to assume for the purpose of sustaining the law, that the legislature were actuated or induced to enact the law because money was so abundant-in this territory that in the opinion of the legislature a fine of five hundred dollars is not more, proportionally, in Idaho, than a fine of one hundred dollars in an eastern state or territory. We do not think the legislature was actuated by any such motives. Mistakes are neither criminal nor uncommon, and it is certainly more charitable to believe that the law is the result of an innocent and thoughtless mistake than to believe that a legislature selected by the intelligent people of Idaho could make so great a mistake as to intentionally enact that the abundance or scarcity of money could affect a criminal case, while by the same law they declare in effect that it shall not affect a civil case. Our confidence in the intelligence of the legislature that enacted the law will not permit us to conclude that its members labored under the impression that it did not require just as much money to pay a fine of one hundred dollars, and as much experience and ability to adjudicate it, as a civil demand for the same amount.
As to the remaining point in the case, it may be passed without saying more than has already been said in the opinion of the court in this case. Until some authority can be found sustaining the views of the defendants, appellants, and being confident that none can be found, and that none such exists, and believing that the cases before referred to in the opinion of the court are a complete answer to the positions taken by the defendants, appellants, further comment is omitted.
We are therefore of the opinion that the rehearing be denied, and that the judgment of the district court be *349affirmed at the costs of the defendants in this court, and that the district court be by the order of this court directed to execute the judgment and sentence of that court pronounced at the last term thereof.