(concurring). I agree that the court should not invoke the power of superintending control upon the original application as presented. In a recent case this court has said that this power is a branch of the sovereign power of the people, committed as a sacred ■charge to this court, not to be exercised upon light occasion, or when •other and ordinary remedies are sufficient. State ex rel. Lemke v. District Ct. ante, 27, 186 N. W. 381, 387. The grant of this power was not intended to provide for the power of review as by appeal. State ex rel. Red River Brick Corp. v. District Ct. 24 N. D. 28, 32, 138 N. W. 988. Where it is sought to compel action by an inferior court, the power may not be invoked to correct errors in a case where the lower court has not refused to act but has committed some mistake. State ex rel. Northern P. R. Co. v. Judge of District Ct. 3 N. D. 43, 53 N. *1142W. 433; State ex rel. Atty. Gen. v. Dist. Ct. 13 N. D. 211, 218, 100 N. W. 248.
The constitution provides that this court shall have a general superintending control over all inferior courts under such regulations and limitations as may he prescribed by law. N. D. Const. § 86. The Wisconsin Constitution does not contain the underscored words above quoted. See Wis. Const, art. 7. Thus, the Wisconsin cases cited by the petitioner can be distinguished in application of the power. The statute provides that this court in its superintending control over inferior courts may issue such original and remedial writs as are necessary to the proper exercise of its jurisdiction of superintending control. Comp. Laws 1923, § 7339.
In the original application presented to this court it appears that the trial court, upon motion made, set the indictment returned upon statutory grounds.
The statute in such case provides that the court, if it sets aside the indictment, must order that the defendant, if in custody, be discharged, therefrom or, if admitted to bail, that the bail be exonerated or, if he has deposited money instead of bail, that the same be refunded to him unless the court directs that another or an amended information be filed or that the case be submitted to the same or another grand jury. Comp. Laws 1913, § 10,732. Further, the statute provides that, “if the court directs that another or an amended-information be filed or that the case be resubmitted to the same or another grand jury, the defendant, if already in custody, must so remain unless he is admitted to bail; or, if already admitted to bail, or money has been deposited instead therefor, the bail or money is to be answerable for the appearance of the defendant to answer a new information or indictment, and unless another or an amended information or an information in the place of the indictment set aside, as provided in the last section, is filed within ten days from the date of the order, or the filing of the defendant’s waiver of a preliminary examination, or a new indictment is found at the same or next term of the district court, as the case may be, the defendant must be discharged and his bail exonerated or money refunded as provided in the preceding section.” Comp. Laws 1913, § 10,733.
These statutory provisions give to the trial court a power to order that another or amended information be filed or that the case be resub-*1143milted to tbe samo or another grand jury. It grants the additional power to the trial court to retain the defendant in custody if he so directs. These statutory provisions so quoted are found in the law of New York, Montana, and California. Cook, Crim. Code (N. Y.) 1918, §§ 317, 318; Mont. Rev. Codes 1907, §§ 9195, 9196; Penal Code, Kerr’s Cyc. Code (Cal.) §§ 997, 998. This power so granted to the trial court did not inhibit or deny the power and authority of the prosecuting officials to again resubmit before a grand jury the subject-matter involved in the indictment quashed or to institute proceedings otherwise for a further prosecution. People v. Rosenthal, 197 N. Y. 395, 46 L.R.A.(N.S.) 31, 90 N. E. 991; People v. Breen, 130 Cal. 74, 62 Pac. 408.
Accordingly, the trial court has jurisdiction under the statute to hear the motion to quash the indictment. It had the power to deny or grant this motion. With jurisdiction over the indictment and the person of the defendant, it heard the motion to quash. It granted such motion. It also possessed, then, pursuant to the statute, the jurisdiction and the power to direct the prosecuting officials to resubmit the subject matter to the same or another grand jury or to take proceedings for the filing of an information; also to retain the custody of and jurisdiction over the defendants. The trial court, pursuant to its power and authority, did not order that the subject matter be referred to the same or another grand jury. Thereupon, pursuant to the statute, it became the duty of the trial court to dischargte the defendants and exonerate their bail. This was done. Thereupon the trial court dispossessed itself of jurisdiction over the person of the defendants and over the subject matter then pending before him. Thus, pursuant to the statute, it is clear that the statute has provided a specific method for further prosecution when an indictment has been quashed even though the trial court has erroneously quashed the same. First, it permits the trial court to direct the subject matter to be submitted to the same or another grand jury and to retain custody of the defendants concerned.; second, the prosecuting officials have the power and authority, irrespective of the court’s order, to institute another proceeding either before a grand jury or by way of a preliminary examination and an information to bring the matter before the court, not in the same proceeding but in another proceeding. Section 10,733, Comp. Laws 1913, specifically provides *1144that an order setting aside an indictment is no bar to a future prosecution for the same offense. I am accordingly of the opinion that the statute has explicitly provided for future proceedings in cases like the case at bar where an indictment has been quashed; that, pursuant- to the statute, the trial court, after it made its order discharging the defendants and no order directing the prosecuting officials to resubmit the subject matter to the same or another grand jury, lost its jurisdiction and did not thereafter possess the power or the authority to set aside its own order and reinstate the indictment; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N. W. 545. See State v. Kelsey, ante, 147, 190 N. W. 817. The statute provides the method for reinvesting jurisdiction through independent proceedings.