The petitioner, Charles L. Heitman, an attorney of this court, and an elector and taxpayer of Kootenai county, filed his application in this court, praying that a writ of mandate issue out of this court to Honorable R. T. Morgan, judge of the first judicial district of this state, commanding him to rescind and vacate an order made by him on the sixteenth day of November, quashing the panel of jurors returned to serve at the November term of said court, in and for Kootenai county, and to forthwith resummon and reconvene such jury and proceed with the trial of cases pending in said court. An alternative writ issued December 3, 1904, returnable December 8th, and the cause was thereafter heard upon the petition of the plaintiff and a motion of defendant to quash the alternative writ and his answer and return to the writ.
It appears that at the regular January, 1904, meeting of the board of commissioners of Kootenai county, that in compliance with the provisions of sections 3947-3948, Revised Statutes, the board selected a list of one hundred and fifty names and certified the same for jury service in the county during the year 1904. From this order there does not appear to ever have been any appeal taken. On the fourteenth day of November, 1904, the same being the first day of the November term of the district court in and for Kootenai county, T. H. Wilson, prosecuting attorney for Kootenai county, appeared before the court and filed his affidavit and motion praying the court to quash the panel and discharge the jurors summoned for that term of court. The motion was based upon the grounds that the jury list for the year 1904, had been illegally selected, in that the names had not been taken from the poll list as required by the Revised Statutes, but that, on the contrary, the commissioners and other eounty officers/mot at Mr. Heitman’s office prior to the regular board meeting and discussed the names of persons they consid*564ered eligible, competent and qualified to act as jurors from the different portions of the county, each and all of the persons present suggesting names, and that at said meeting the list of one hundred and fifty names were made out and thereafter typewritten by a stenographer who was in the employ of the plaintiff, and delivered to the board of commissioners. This was substantially the grounds of the motion. At the time the motion was made by the prosecuting attorney the plaintiff in this case appears to have been present in court, and without citing any person to appear, or making anyone a party to the proceeding, the court proceeded to hear the matter and take testimony from numerous witnesses who were produced, and after the hearing made his order sustaining the motion and qua'shing-the panel and discharging the jurors. It should be observed .that no case was on trial or called for trial when this motion was made, and no case had been set for trial, and that this motion was not made by any party litigant nor in any case pending before the court.
In the proceeding below there seems to have been some effort made to reflect upon the action and conduct of the plaintiff here, Mr. Heitman, who is a reputable and respected attorney of this court, and we deem it consonant with this proceeding to observe that- there is nothing in the record that characterizes his conduct other than that of an honorable and upright citizen and lawyer.
Sections 3947 and 3948, Revised Statutes, provide the time and manner of preparing a jury list for the district court in each county for the year. Those sections are as follows:
. “Sec. 3947. The board of commissioners of each county must, at their first regular meeting in each year, or at any other meeting, if neglected at the first, make a list of persons to serve as jurors in the district court of the county, for the ensuing year.
. “Sec. 3948. They must proceed to select and list from the poll lists of the several precincts in their respective counties, last returned to the clerk of their board, the names of one .hundred and fifty persons competent to serve as jurors; and in making such selection, they must take the names of such only as are not exempt from serving, who are in possession of their *565natural faculties, and not infirm or decrepit, of fair character, of approved integrity, and of sound judgment; provided, that if, in any of the counties, the county commissioners shall not be able to select the number required by this section, for jurors, they may select a less number and the highest possible.”
The first question which arises for our determination is whether or not the defendant as judge of the district court had jurisdiction and authority to hear and determine the regularity and legality of the jury list and panel drawn therefrom at the time and in the manner he assumed to act. By the provisions of section 1776, Bevised Statutes, as amended February 14, 1899 (Sess. Laws 1899, 248), every taxpayer of Kootenai county was afforded the right of appeal from the order of the board of county commissioners in selecting and listing names of persons to serve as jurors for the year 1904 in that county. In addition to the right of appeal granted by statute, it is likely that the principles of equity are sufficiently broad and elastic to permit of a direct attack on that order on the grounds of fraud. In either case, however, the commissioners and the county represented by them, should be brought into court by the regular process of law. There is no more presumption in favor of one official than another when it comes to the honest and faithful discharge of his official duties. The prima, facie presumption of law is that each has faithfully discharged his duties. Here neither the commissioners nor the county (the citizens) represented by them ever had their day in court. This was a proceeding sui generis. The prosecuting attorney, who is by law the legal adviser of the board of commissioners, was the moving party before the district court, and yet it does not appear that he had ever called the matter to the attention of the board or asked them to vacate their order and make and file a new list. Again, it is shown that no litigant was complaining, and no person whose rights or interests could be in any way effected by the action of this jury complained. The individual litigant has every opportunity of testing the fairness and legality of the jury when his case is called for trial, and he is then provided with all the safeguards necessary for his protection and attaining the ends of justice (sections 4379, 7818 and *5667819), and this is available to the state as well as individuals. We are clearly of the opinion that the defendant judge was without jurisdiction and authority to make the order complained of at the time and in the manner and by the proceeding in which such action was taken and order made. Jurisdiction to make such order cannot be acquired in an ex parte manner. Since we have concluded that the action taken was in excess of the jurisdiction of the defendant judge, it must necessarily follow that the writ of mandate will not lie and that the remedy is by certiorari. (Eev. Stats., sec. 4962).
There is another reason why the writ of mandate as prayed for cannot issue in this case. To issue the writ and require the trial judge to resummon the jury and proceed with the trial of jury cases would necessitate the continued presence of the judge in Kootenai county, while, on the other hand, it is shown that the regular term of district court was called to convene in Shoshone county on the next judicial day after the date of our hearing this application, and that only one term of district court has been held in Shoshone county for the year 1904. The issuance of the writ would therefore interfere with a regular term of court in another county of the same judicial district and delay the business of that county, and possibly deprive the county of its constitutional right to two terms of court each year (Const., art. 5, sec. 11). The alternative writ will therefore be quashed and the petition denied. No costs awarded.