ON REHEARING.
(March 1, 1894.)
HUSTON, C. J.The first proposition of counsel, in . the petition for a rehearing is that section 7459 of the Revised Statutes of Idaho is repugnant to the constitution of the United States, in that it provides for a penalty or money judgment for more than twenty dollars without the right of trial by jury; said section, having been enacted while Idaho was a territory, was, for said reason, void ab initio; and, being so, the provision of our state constitution continuing in force all existing laws of the territory not repugnant to the state constitution could not give validity to said section 7459. The answer to this proposition is, said section 7459 was not repugnant to any provision of the federal constitution at the time it was enacted by the territorial legislature. The protection of the public from the acts of corrupt or incompetent officials was a “rightful subject of legislation,” and, being so, was clearly within the powers conferred upon the legislature by the organic act. It was a power which has been recognized and acted upon by most of the states of the Union. To say that the legislature had the power to evict one from an office to which he had been legally elected or *65appointed, on account of malfeasance in office, but could not impose upon the delinquent the costs of the proceedings, or a penalty, is equivalent to saying that a court may punish a person for contempt, by causing him to be removed from the-presence of the court, but cannot inflict upon the offender either fine or imprisonment. The ease does not come within the provisions of section 18G8 of the Revised Statutes of the United States, in that it is not “a case cognizable at common law.” There is no civil action for the recovery of a penalty interwoven with the proceedings provided for by section 7459. No discretion is given to the court to fix or impose a fine or penalty. The language is: “And if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer and such costs as are allowed in civil cases.”
It being conceded that section 7459, in so far as it provides for the removal from office of the delinquent; is not obnoxious to the constitutional objections urged, but that the legislature, in providing for the entry of a judgment for $500 in favor of the informer, without interposition of a jury, exceeded their powers, now let us see where the contention of counsel would lead us. The court has entertained the complaint, the proofs pro and con have been^ heard, and the court has decided that a case has been made under the provisions of the statute. Now, where does the function of the jury come in? What are they to try? The court has passed upon all the facts, and properly so, it is conceded. "What question is left for the jury to try? Is it the amount of the judgment to be entered against the delinquent official? That has been fixed by the statute, and neither the court nor the jury have or could have any discretion therein. If the legislature had power to authorize the court to hear and determine the facts without the interposition of a jurjq can it be consistently contended that they had no power to authorize the court to enter such judgment as the legislature prescribes? The right of the legislature to provide for the summary removal of incompetent or unfaithful officers is no new doctrine; and such legislation is on lines distinct from that *66which, provides for punishment for extortion, or the right of recovery by the injured party of the sum wrongfully procured by an official through color of office. It arises from the exigencies of government, and, if its enforcement is to be obstructed by all the delays and embarrassments incident to a jury trial, the aim and purpose of the law would be entirely defeated. In thus holding, we believe we are carrying out the true intent and purpose of the law, which is to protect the people from the rapacity of unscrupulous officials, or the injury arising from the incompetence of those in official position. The whole subject of county government, the designating of county, township, and district officers (except justices of the peace and general officers of the militia), and the providing for their appointment or election, was, by the organic act of the territory left with the governor and legislative assembly; and a recognized incident of the power thus granted was the authority to provide for the removal of unworthy and incompetent persons from such offices, and this power could only be effectually exercised, to the accomplishment of the proposed end, by summary proceedings. We have examined with studious care the authorities cited by counsel, but are unable to find therein anything which constrains us to a different conclusion from that announced in the decision heretofore rendered in this case. The petition for a rehearing is denied.