Concurring in Part Only. — This is an application for a writ of mandate and my associates hold that the plaintiff has mistaken his remedy,'that his remedy was by writ of review. I cannot agree with them in that conclusion. The facts are quite fully stated in the opinion of Mr. Justice Ail-shie. The plaintiff prays for a writ of mandate commanding the judge of said court to rescind and vacate an order made by him on the sixteenth day of November, whereby he quashed the panel of jurors returned to serve for the November term of said court and to forthwith resummon and reconvene said jury and proceed with the trial of eases pending in said court.
It appears that the petitioner was apprehensive that said November term of court would pass without a trial of any of *567the jury cases on the calendar, as in fact it did so pass. The term was commenced on the tenth day of November, 1904, and closed on the following twelfth day of December, without a trial of any of the jury cases on the calendar, and the failure to try any of the jury cases was because of the discharge of the panel as aforesaid. It is a part of the history of the state that two terms of said court are held in said county each year, and one had been held in the month of April prior to said November term, and it appears that unless the action of the court in setting aside said panel was itself set aside, no jury cases would be tried for perhaps six months thereafter; and as section 18 of article 1 of the state constitution provides that courts of justice shall be open to every person and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay or prejudice; it would appear that that provision of said section providing that a speedy remedy shall be afforded without delay, would be violated by the unauthorized act of said court in the discharge of said jury. The record of the proceedings of said court in quashing said panel is before the court in this action, and the main object and purpose of the petitioner was to compel the court to rescind said order and to proceed without delay and try the jury cases, especially criminal cases, that were on its calendar in compliance with the above noted provisions of the constitution.
In the decision of this case the court holds that the district court exceeded its jurisdiction in discharging said panel, and this proceeding was brought not only to set aside that unauthorized action of the court, but its main object or purpose is to compel the court to proceed with the trial of the jury cases and not continue them until the next term of said court. An application for a writ of mandate was the proper proceeding, and the writ should have been granted. The action of a court upon an application for a writ of review cannot extend further than to determine whether an inferior tribunal, board or officer has regularly pursued the authority of such tribunal or board. (Rer. Stats., sec. 4968.) And the judgment of this court going that far and no further, would not give the plaintiff the *568relief he is entitled to under the allegations and prayer of Ids petition. The court had discharged, without authority o-f law, the jury that had been regularly drawn and summoned, which action would necessitate the continuance of the jury trials for that term, and the main object and purpose of this action was to compel the judge to proceed and try such cases without unnecessary delay. TJnder a writ of mandate this court can compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, and it was the plain duty of said court under the. provision of the constitution above quoted, and the law, to proceed and try all jury cases on the calendar that the parties desired to have tried at that term. . And after this court has held that the trial court exceeded its jurisdiction in the discharge of the panel, it seems to me that it was the duty of this court to issue a writ of mandate directing the trial court to resummon the jurors illegally discharged and to proceed with the trial of the jury cases then on its calendar.
In Merrill on Mandamus, section 46, it is held that if an inferior tribunal declines to hear a case on what is termed a preliminary objection, and the objection is purely a matter of law, the writ will issue if such tribunal has misconstrued the law; and the author there states that most all of the authorities agree that if a tribunal dismisses a ease under the mistaken Con-elusion that .it has not jurisdiction, its action will be reviewed by writ of mandate, and it will be compelled to try the case or hear the matter. In this ease upon a preliminary objection the panel was discharged, and as a result of that mistake all jury cases were continued for the term, and this court having held that the district court exceeded its jurisdiction in that matter, it should have been compelled by mandate to resummon the jurors so discharged and proceed with the trial of the jury cases, and the qualifications of each of said jurors could have been then and there determined. By a writ of review the wrong of which the plaintiff complains could not be redressed, as under it the district court could not be compelled to proceed without delay and try the jury cases that were ready for trial at that term of court.
*569In People v. Judge, 22 Mich. 493, it is held that where it was shown that service had been made by the sheriff and the circuit court on motion ordered such service to be set aside as unauthorized by statute, mandamus would be granted to compel said court to vacate said order. In the case at bar the court made an order not authorized by statute and mandamus should be granted to compel the court to vacate said order.
In People v. Judge, 59 Mich. 529, 26 N. W. 694, it is held that a decision quashing an indictment may be reviewed, the only question being, What is the better form of review? That and mandamus was held the most appropriate remedy. So in the ease at bar the question is, Which is the most appropriate remedy? Eeview is not, because the wrong complained of cannot be completely remedied under that proceeding. Mandamus is, because a full and complete remedy may be given by that writ. (See Hill v. Morgan, 9 Idaho, 718, 76 Pac. 323.)
It is not sufficient to say that the issuance of the writ of mandate might interfere with the right of Shoshone county to have two terms of court during the year 1904 as provided by the constitution, as the rights of the people of Kootenai county to have two terms of court each year is given by the same provision of the constitution.
I concur in the conclusion reached by Mr. Justice Ailshie, to the effect that the court had no jurisdiction to make the order discharging said panel, and dissent from the conclusion that certiorari is the appropriate remedy.