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There is nothing in the third assignment of error. The act in question fixes the minimum punishment, but does not fix the maximum. Section 1 of said act makes the offense a misdemeanor. Section 6313, Rev. St., is as follows: "Except in cases where a different punishment is prescribed by this Code, every offense declared to be a misdemeanor, is punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding three hundred dollars or by both." Reading the act in question with said section 6313, Id., both the maximum and minimum punishments are provided. There is no constitutional objection to the fixing of the mimimum punishment only by the legislature in a particular statute.

The sixth, seventh, and eighth assignments of error are based upon the discrepancy claimed to exist between the enrolled bill and the printed bill, to which we have heretofore adverted. If the contention was sustained by the record, it would not vitiate the act in question. The record shows that the bill passed both houses in the manner provided by the constitution. If the word "testimony," in section 7 of the act under consideration, appeared in the enrolled bill, in the printed bill, and in the engrossed bill, it would not vitiate the act in question. As the clear intent of the act, considered as a whole, and especially of section 7, is apparent, that intention could not be defeated by a slight typographical error. It is the duty of courts, in construing and applying statutes that have been constitutionally enacted, to give force and effect to the will and intent of the legislature, and not to defeat that will and intent by giving force to trivial objection based solely on an immaterial typographical error. Finding no error in the record, the judgment appealed from is affirmed.

HUSTON, C. J., and SULLIVAN, J., con

cur.

(6 Idaho, 657)

In re CORCORAN.

(Supreme Court of Idaho. Nov. 27, 1899.) HABEAS CORPUS-REVIEW-GRAND JURY-LEGALITY-SENTENCE.

1. In an application for a writ of habeas corpus, the matter of the drawing, summoning, and impaneling of the grand jury which found indictment under which the petitioner was convicted are not proper matters for consideration, such questions being subject to review only on appeal or writ of error.

2. In this case the objections raised to the legality of the grand jury examined, and held to be untenable.

3. The provisions of section 8500, Rev. St., providing for the sentence of persons convicted of crimes punishable by imprisonment in the state penitentiary, has not been repealed or modified by subsequent legislation.

(Syllabus by the Court.)

Application of Paul Corcoran for a writ of habeas corpus. Denied.

Patrick Reddy and A. A. Fraser, for petitioner. S. H. Hays, Atty. Gen., and W. E. Borah, for the State.

HUSTON, C. J. The petitioner was convicted of murder in the second degree, and sentenced to confinement in the state penitentiary at hard labor for the period of 17 years. Application is made for a writ of habeas corpus, which application is based upon several grounds. The jumbled, incoherent, and repetitive manner in which the grounds upon which the writ is asked are stated in the briefs of counsel for the petitioner renders it somewhat difficult to treat or consider them seriatim. We will therefore consider them as they appear to us in the briefs of counsel.

The primary contention is, as set forth in the principal brief, "that the judgment and sentence is void, because the court never acquired jurisdiction of the person of the defendant, or of the offense set forth in the judgment and commitment"; and this, because, as is contended, the grand jury which found the indictment upon which the petitioner was tried and convicted was not summoned and impaneled as required by law. In support of this position, petitioner's counsel set forth the proceedings of the court in the matter of summoning the grand jury, as the same appears in the record, which is as follows: "In the Matter of Drawing and Summoning a Grand Jury. It satisfactorily appearing to the court that a grand jury will be required at this term of court, and that the same has not been drawn or summoned to attend, it is therefore ordered that the coroner and acting sheriff of said county summon, as provided by law, twenty good and lawful men of this county to be and appear at the court house of said county, at Wallace, at 2 o'clock p. m., on June 12th, A. D. 1899. Done in open court this 8th day of June, A. D. 1899. [Signed] George H. Stewart, Judge." It should be stated in limine that it is shown, both by the return to the writ of habeas corpus herein, as well as by public records, of which we take judicial notice, that at the general election held in November, 1898, the county seat of Shoshone county was, by a vote of the qualified electors of said county, changed from the town of Murray to the town of Wallace, and that the jury, which counsel for petitioner claims had already been drawn, was drawn at the town of Murray, after such removal of the county seat to the town of Wallace. The law provides that the jury shall be drawn at the office of the clerk, which is required to be kept at the county seat, and, the law not having been complied with in the drawing of such jury, the statement of the district judge in his order that no jury had been drawn was entirely correct. It is contended by counsel for the petitioner that "the court had no power or authority to make

such order, and it was therefore null and void."

Section 3952, Rev. St., as the same stood prior to the amendatory act of February 7, 1899 (see Sess. Laws Idaho 1899, p. 335), was as follows: "Not less than fifteen nor more than thirty days before the commencement of any term of the district court, the judge thereof, if a jury will be required therefor, must make and file with the clerk an order that one be drawn. The number to be drawn must be fixed in the order; if to form a grand jury, it must be twenty, and if a trial jury, such number as the judge may direct." By the amendatory act referred to, said section was made to read as follows: "The district court, or the judge thereof, if a jury will be required at any term of the district court, must make and file with the clerk an order that one be drawn. The number to be drawn must be fixed in the order; if to form a grand jury, it must be twenty, and if a trial jury, such number as the judge may direct." It will be seen that the only change made in the section by this amendment is the elimination therefrom of the time within which such order must be made, to wit: "Not less than fifteen nor more than thirty days before the commencement of any term of the district court." The purpose and intent of the legislature in the enactment of this amendment is palpable, and yet counsel for petitioner most vehemently contends that this amendatory act repealed section 3961, Rev. St. This latter section is as follows: "Sec. 3961. Whenever jurors are not drawn and summoned to attend any court of record, or a sufficient number of jurors fail to appear, such court may, in its discretion, order a sufficient number to be drawn and summoned to attend such court; or it may, by order entered on its minutes, direct the sheriff of the county to summon so many good and lawful men of his county, to serve as jurors as the case may require. And in either case such jurors must be summoned in the manner provided by the preceding section." This contention of counsel rests entirely upon the assumption that section 2 of the amendatory act provides that "all acts and parts of acts in conflict with this act are hereby repealed," and that the provisions of section 3961 are in conflict with section 3952 as amended. It will hardly be contended, we apprehend, that there was any conflict between section 3952 and section 3961 before the amendatory act was passed, and how the amendment, which consists solely of the striking out from said section of the time within which the order of the court directing the drawing of the jury should be made, can create a conflict is entirely beyond our comprehension.

This whole question was before this court in the case of Simmons v. Cunningham, 39 Pac. 1109, and the action of the district court in that case was sustained. The conditions existing in Shoshone county at the time of

the trial in Simmons v. Cunningham, or at the commencement of the term at which said trial was had, were, only in a lesser degree, the same as existed at the opening of the term at which the petitioner was tried and convicted; and the court, upon petition of the bar of Shoshone county, adjourned the term from July 7th to July 16th, and discharged all jurors theretofore drawn for such term. On the convening of the court, on July 16th, a venire was issued, as provided in section 3961, and this action of the district court was affirmed by this court. In the case at bar a much more serious condition of affairs existed. For a period of some eight years the organization known as the "Miners' Union" had had almost absolute control of the affairs of Shoshone county; the election of all officers of the county had been controlled by that organization; all business was subject to their domination and dictation; crimes of the most heinous character had been committed with impunity; and so intimidated had been the law-abiding portion of the county, who were vastly in the minority, that any investigation of such crimes was practically impossible. That this condition of things had existed from 1892 is matter of history. It is also matter of history that on April 29, 1899. a mob of something about 1,000 in numbers, composed of members of the organization known as the "Miners' Union," and many of whom were masked, coming from the various mining camps in said county, overpowering the railroad employés, came by train to Wardner Junction, in said county, destroyed several hundred thousand dollars of property, and committed two murders. The county commissioners, the sheriff, and the prosecuting attorney of said county were notoriously known to be, if not members of said organization, openly in sympathy with them. On May 4, 1899, such was the condition of things in said Shoshone county, by reason of the unlawful, treasonable, and murderous acts of said organization known as the "Miners' Union," and the members thereof, that the governor of Idaho issued his proclamation, declaring said Shoshone county in a state of insurrection, and calling upon the federal government for aid in the maintenance of the law therein. At the convening of the district court in said Shoshone county, on the 8th day of June, 1899, the district judge found the officers of said county heretofore named under arrest by the military authorities. It is for one of the murders committed by said mob on the 29th day of April, 1899, that the petitioner was indicted and convicted. Under the conditions above described, the district court ordered a jury to be summoned under the provisions of section 3961, Rev. St., and this action of the district court we consider legal, proper, and highly commendable. We might have disposed of so much of this case upon the ground that none of these questions involving the drawing, summoning, and impaneling of the grand jury are properly in

quirable into upon an application for a writ of habeas corpus. We have not, however, done so, but have preferred rather to examine the questions raised by counsel for petitioner, notwithstanding what appeared to us their frivolous and utterly untenable character.

It seems to be one of the methods of this organization known as the "Miners' Union," whenever an attempt is made to bring them to account for their unlawful, barbarous, and murderous acts, to at once commence an attack upon the legally constituted authorities who are endeavoring to enforce and maintain the law, and by their false clamor seek to excite sympathy for the malefactors; and such action, by virtue of the recognized "freedom of the press" in this country, always finds an echo, and too frequently indorsement, with that portion of the press whose moral principles are governed and controlled by what is for their gain. Thousands of miles

from the scene of the transactions they assume to judge and criticise. These "leading' journals of civilization” hesitate not, upon no other authority than the lurid reports of their "scoop" friends, based upon the statements of known malefactors and their advocates and defenders, to assail indiscriminately the legally constituted authorities of a community or state for their efforts to maintain the law, and protect persons and property, within their jurisdiction. In keeping with this custom and rule, both the executive and judiciary of the state have been assailed in terms of unmeasured vituperation for simply doing their duty under their oath of office.

We have not attempted to, nor do we deem it essential that we should, follow counsel through all the vagaries of a voluminous brief, wherein they seek to establish their contention that the grand jury which found the indictment under which the petitioner was convicted was not a legal body. We have shown that said grand jury was a legal body, duly summoned and impaneled under the statutes of Idaho, and with that we are, and counsel must be, content.

It is further contended by counsel for petitioner that the judgment and sentence of the district court is void for the reason that it subjects the petitioner to "confinement at hard labor" in the state penitentiary. Section 8500, Rev. St. Idaho, is as follows: "The penitentiary building erected and conducted by the United States, in the county of Ada, is the territorial prison of the territory of Idaho, wherein must be confined for reformation and punishment, and employed at hard labor, all offenders convicted and sentenced according to law to imprisonment in the territorial prison; and all persons convicted of crime against the laws of this territory and sentenced to confinement in the territorial prison, must be sentenced to hard labor during the term of their confinement, and must perform such labor under such rules and regulations as may be prescribed by the govern

or of the territory, the United States marshal and the territorial treasurer; and they may make regulations for working prisoners outside of the prison walls between sunrise and sunset." The first legislature under statehood enacted a law for the government and management of the state penitentiary, the penitentiary building theretofore erected and conducted by the United States having been transferred to the state by the federal government. See Sess. Laws 1891, p. 21. The legislature of Idaho, at its session in 1893, amended sections 2 and 15 of the act of the first session (see Sess. Laws 1893, p. 155); but neither the act of 1891 nor the act of 1893 attempted to or did effect the provisions of section 8500, Rev. St., in regard to the matter under consideration, nor is there anything in either of those acts which conflicts with the provisions of section 8500, Rev. St., directing the form of sentence to be passed upon persons convicted of crimes punishable by imprisonment in the state penitentiary, and the same may be said of the amendatory acts of 1899. Those acts do not treat of, or in any way allude to or impinge upon, the provisions of section 8500, Rev. St., under consideration. The amendment referred to by counsel as having been enacted March 9, 1899, refers to certain sections of the law of 1891 and the acts amendatory thereof, and is as follows:

"Section 1. That section seven (7) of an act entitled 'An act to provide for the government and maintenance of the penitentiary and for the care and custody of state prisoners,' approved February 2, 1899, be amended to read as follows: 'Sec. 7. The board shall have authority to use the labor of the convicts in the erection of a wall around the penitentiary buildings and grounds, and in the construction of irrigating and water ditches for the purpose of bringing water upon said penitentiary grounds as in the opinion of said board may be necessary for the proper cultivation of said grounds, and in making such other improvements and repairs to said buildings and grounds as they may deem proper and necessary, and in the performance of any labor in and about or in connection with the said penitentiary and penitentiary grounds or lands or works necessary for the improvement thereof.'

"Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed."

All of this legislation refers to the control, government, and management of the state penitentiary, and to that only; never in the remotest degree alluding to the form of sentence to be inflicted by the court before which a defendant has been convicted. Section 8500 was continued in force by the provisions of the constitution, there being nothing in said section that conflicts with said instrument.

That the court will not, upon an application for a writ of habeas corpus, consider the question of the drawing, summoning, and impaneling of the grand jury which found the indictment upon which the party was convict

ed, is, we think, well settled. In re McElroy (Kan. Sup.) 58 Pac. 677, and cases there cited. After a most careful and thorough examination and consideration of the record in this case and of the briefs of counsel, we are unable to find any grounds for the granting of the writ prayed for in the petition, and the same is therefore denied.

QUARLES and SULLIVAN, JJ., concur.

(6 Idaho, 625)

BOYD V. STEELE, Judge. (Supreme Court of Idaho. Nov. 20, 1899.) DISMISSAL RIGHT OF PLAINTIFF TO DIRECT -ENTRY IN REGISTER OF ACTIONS-ENTRY

OF JUDGMENT-DUTY OF CLERK.

1. Under the provisions of section 4354, Rev. St., which provides that an action may be dis missed by the plaintiff at any time before trial, upon payment of costs, provided a counterclaim has not been made or affirmative relief sought by the defendant, the plaintiff in such a case is entitled to a dismissal upon payment of costs, and filing his dismissal with the clerk.

2. The clerk could not defeat a dismissal by neglecting or refusing to enter a formal judgment of dismissal.

3. If the provisions of said section require a formal entry of judgment, it is one of the cases in which the law presumes that to have been done which ought to have been done.

4. The omission to enter a judgment of dismissal did not defeat the plaintiff's dismissal of Isaid action, nor did such dismissal remain in abeyance until the entry of judgment.

(Syllabus by the Court.)

Application by Joseph H. Boyd for a writ of prohibition directed to Edgar C. Steele, judge. Writ granted.

W. T. Birdsall and Orland & Smith, for plaintiff. Willis Sweet and S. S. Denning, for defendant.

SULLIVAN, J. This is an application for a writ of prohibition, and arises out of the following facts: The plaintiff, Joseph H. Boyd, brought an action in the district court of the Second judicial district, in Latah county, against Willis Sweet and William L. Spaulding, in which action plaintiff prayed that the assignment of a certain judgment obtained in the case of said Spaulding against the Cœur d'Alene Railway & Navigation Company, made by said Spaulding to defendant Sweet, be set aside and declared void, and that said Boyd be adjudged to be the owner thereof; for a temporary injunction, for a receiver, and for other relief, which is fully set out in the prayer to said complaint. Defendants demurred to said complaint, which was overruled. Defendants thereupon filed separate answers, and the plaintiff (who is petitioner here) demurred to one answer, and moved to strike the other. Said plaintiff thereafter, on the 26th day of April, 1899, through his attorney, directed the clerk of said court to enter upon the proper page in the register of actions a dismissal of said suit. The clerk made the following entry in said book: "April 26th, 1899. Order of dismissal filed April 26th,

1899. This action is hereby dismissed, at request of plaintiff, who paid all costs." The following paper was filed in said suit on the same day, to wit: "District Court of Idaho, in the Second District. Joseph H. Boyd against William L. Spaulding and Willis Sweet. In Equity. No. 1,907. It duly appearing by the pleadings herein that the answer of defendants does not contain a counterclaim or affirmative defense: Now, on motion of R. L. Edmiston, one of the attorneys for the plaintiff herein, it is ordered and adjudged that this action may be, and the same is hereby, dismissed on the payment by plaintiff to the defendants or their attorney of the sum of one dollar, the amount of defendants' costs as taxed herein by the court. [Signed] Oscar Larson, Clerk, by E. C. Hall, Deputy. R. L. Edmiston and Orland & Smith, Attorneys for plaintiff. Filed April 26, 1899. Oscar Larson, Clerk, by E. C. Hall, Deputy." On the 27th day of April, 1899, the plaintiff, Boyd, brought another action for the same cause in the circuit court of the United States, in the district of Idaho, against the same defendants. The defendants appeared therein. and filed a plea in abatement, upon the ground of the pendency of said suit in the state court, and attached to said plea were copies of papers, showing that an application had been made to said state court to vacate said order of dismissal; that on May 16, 1899, said plea was overruled by said circuit court, and thereafter, on July 1, 1899, said court made an order wherein it is recited that satisfactory evidence had been furnished, showing that an action between these parties for the same cause was then pending in the state court, and that said action was commenced prior to the one in the circuit court. Further proceedings were ordered suspended in said circuit court until further order. The defendants on May 25, 1899, moved to vacate and set aside said order of dismissal, supposing, as they say in their brief, that in attempting to dismiss said cause the attorneys for the petitioner had complied with the statutory requirements; that this misapprehension was due to the fact that counsel who drew the petition was in Spokane, Wash., and was not fully advised as to the nature and character of the dismissal proceedings. When the petition to vacate said order of dismissal was presented to the district court, the court stated that the document described as a judgment of dismissal was a void instrument, and therefore of no force or effect; hence there was nothing to set aside or dismiss. Thereupon defendant Spaulding filed his amended answer and cross complaint. The day after the filing of said amended answer, the plaintiff, Boyd, by his attorneys, who appeared specially for that purpose, and no other, moved for a nunc pro tunc order dismissing said action, which motion was denied on the grounds that the provisions of section 4354 that apply to a plaintiff dismissing his action had not been complied with by the plaintiff. Said provi

sions are as follows: "An action may be dismissed, or a judgment of nonsuit entered in the following cases: (1) By the plaintiff himself, at any time before trial upon the payment of costs; provided, a counter-claim has not been made or affirmative relief sought by the cross-complaint or answer of defendant. If a provisional remedy has been allowed the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereupon; (2) by either party, upon the written consent of the other; (3) by the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal; (4) by the court, when, upon the trial, and before the final submission of the case, the plaintiff abandons it; (5) by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury.

The dismissal mentioned in the first two subdivisions is made by an entry in the clerk's register. Judgment may thereupon be entered accordingly." So far as shown to the court below, the plaintiff had paid the costs, and had the following entry made in the register of actions by the clerk, to wit: "April 26, 1899. This action is hereby dismissed at request of plaintiff, who paid all costs." That court says, inter alia, "No dismissal has been filed by the plaintiff, and the clerk, being governed by the rules which control ministerial officers, must be required to have these prior steps taken, or else his entering judgment would be void." That decision goes off on the point that the said statute requires the plaintiff to file a dismissal, and that he had failed to file it.

We have, perhaps, gone more into the facts of this case than was necessary to a decision of the question raised; but it is one of more than ordinary importance, and we desire to present the facts quite fully. The question for decision is, did the plaintiff dismiss said action, under the provisions of said section 4354, Rev. St.? It is not contended that the answer contains a counterclaim, and it is not seriously contended that affirmative relief is sought by the answer or cross complaint, except that the statute of limitations is set up as a defense. We do not think that the plea of said statute is a counterclaim or a demand for affirmative relief, within the meaning of the term "affirmative relief," as used in said section. It appears

from the record that the attorney for plaintiff appeared at the office of the clerk of said district court on the 26th day of April, 1899, and inquired of said clerk the full amount of costs due in said case, including defendants' costs and the cost of entering judgment of dismissal; and, when the clerk informed him, he thereupon paid all of said costs, and demanded a dismissal of said action, and at the same time presented a formal judgment of dismissal, duly signed by R. L. Edmiston and Orland & Smith, attorneys for plaintiff, which was duly signed by the clerk and filed

by him on said 26th day of April, 1899, a copy of which is above given. On said 26th day of April said clerk made an entry of the dismissal of said action in his register of actions. Under those facts, was said action dismissed?

It is contended by defendant that this action was not and could not be dismissed until the judgment was entered in the judgment book; and he cites several authorities in support of his contention, and, among them, Adams v. McPherson, 2 Idaho, 855, 27 Pac. 577; Durant v. Comegys, 2 Idaho, 810, 26 Pac. 755; and Ah Kle v. McLean, 2 Idaho, 811, 26 Pac. 937. Those cases went off on the ground that the transcripts failed to show that a judgment had been entered; and as section 4807, Rev. St., provides that an appeal may be taken within a definite time therein fixed, after the entry of judgment, the court held that the transcripts must show that judgment had been entered before the appeal was taken, the entry of judgment being a prerequisite to the right of appeal. Stearns v. Aguirre, 7 Cal. 443, is cited by counsel for respondent. In that case two defendants were jointly sued, and service had on both. One answered, and the other did not. The latter's default was entered, and, without the authority or direction of the court, the clerk entered judgment by default against him. The court held, under section 32 of the practice act, and under the facts of that case, that the clerk had no authority to enter judgment. The rule there laid down cannot apply to the case at bar. The judgment there entered was not one of dismissal made on the order or request of the plaintiff. The same may. be said of Kelly v. Van Austin, 17 Cal. 564. In James v. Centre, 53 Cal. 31, it is held that a judgment of dismissal may be entered by the clerk on the application of the plaintiff, notwithstanding a cross complaint had been filed, provided the cross complaint did not set up a counterclaim. The court says: "The judgment of dismissal in form entered by the clerk was properly entered, inasmuch as no counterclaim had been made." That case does not hold that it is absolutely necessary for a judgment of dismissal to be entered, before the dismissal shall take effect. In McLeran v. McNamara, 55 Cal. 508, which was an action in ejectment, involving more than one piece of real estate, and against several defendants, the attorneys for the plaintiff filed a written dismissal of the action as to some of the defendants (naming them), and as to some of the real estate (describing it); and an entry of such dismissal was entered by the clerk in the register of actions, but no judgment of dismissal was entered. The court quotes a part of the practice act then in force, which was like our section 4354; and, after quoting as follows: "The dismissal mentioned in the first two subdivisions shall be made by entry in the clerk's register. Judgment may thereupon be entered accordingly," the

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