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There is nothing in the third assignment of Patrick Reddy and A. A. Fraser, for petierror. The act in question fixes the mini- tioner. S. H. Hays, Atty. Gen., and W. E. mum punishment, but does not fix the maxi- Borah, for the State. mum. Section 1 of said act makes the offense a misdemeanor. Section 6313, Rev. St., HUSTON, C. J. The petitioner was conis as follows: “Except in cases where a differ- victed of murder in the second degree, and ent punishment is prescribed by this Code, ev- sentenced to confinement in the state peniery offense declared to be a misdemeanor, is tentiary at hard labor for the period of 17 punishable by imprisonment in a county jail

years. Application is made for a writ of not exceeding six months, or by a fine not

habeas corpus, which application is based exceeding three hundred dollars or by both.” upon several grounds. The jumbled, incoReading the act in question with said section herent, and repetitive manner in which the 6313, Id., both the maximum and minimum

grounds upon which the writ is asked are punishments are provided. There is no consti- stated in the briefs of counsel for the petitutional objection to the fixing of the mimi

tioner renders it somewhat difficult to treat mum punishment only by the legislature in or consider them seriatim. We will therefore a particular statute.

consider them as they appear to us in the The sixth, seventh, and eighth assignments briefs of counsel. of error are based upon the discrepancy claim

The primary contention is, as set forth in ed to exist between the enrolled bill and the

the principal brief, “that the judgment and printed bill, to which we have heretofore ad

sentence is void, because the court never verted. If the contention was sustained by

acquired jurisdiction of the person of the the record, it would not vitiate the act in ques- defendant, or of the offense set forth in the tion. The record shows that the bill passed

judgment and commitment"; and this, beboth houses in the manner provided by the

cause, as is contended, the grand jury which constitution. If the word "testimony,” in sec- found the indictment upon which the petition 7 of the act under consideration, appear

tioner was tried and convicted was not sumed in the enrolled bill, in the printed bill, and

moned and impaneled as required by law. in the engrossed bill, it would not vitiate the

In support of this position, petitioner's counact in question. As the clear intent of the act,

sel set forth the proceedings of the court in considered as a whole, and especially of sec

the matter of summoning the grand jury, as tion 7, is apparent, that intention could not be

the same appears in the record, which is as defeated by a slight typographical error. It is

follows: “In the Matter of Drawing and the duty of courts, in construing and applying

Summoning a Grand Jury. It satisfactorily statutes that have been constitutionally en

appearing to the court that a grand jury will acted, to give force and effect to the will

be required at this term of court, and that and intent of the legislature, and not to de

the same has not been drawn or summoned feat that will and intent by giving force to

to attend, it is therefore ordered that the trivial objection based solely on an immate

coroner and acting sheriff of said county rial typographical error. Finding no error in

summon, as provided by law, twenty good the record, the judgment appealed from is af

and lawful men of this county to be and apfirmed.

pear at the court house of said county, at

Wallace, at 2 o'clock p. m., on June 12th, A. HUSTON, C. J., and SULLIVAN, J., con

D. 1899. Done in open court this 8th day of cur.

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 (6 Idaho, 657) In re CORCORAN.

writ of habeas corpus herein, as well as by

public records, of which we take judicial no(Supreme Court of Idaho. Nov. 27, 1899.)

tice, that at the general election held in NoHABEAS CORPUS-REVIEW-GRAND JURY-LE- vember, 1898, the county seat of Shoshone GALITY-SENTENCE.

county was, by a vote of the qualified elect1. In an application for a writ of habeas corpus, the matter of the drawing, summoning, and

ors of said county, changed from the town impaneling of the grand jury which found in- of Murray to the town of Wallace, and that dictment under which the petitioner was con- the jury, which counsel for petitioner claims victed are not proper matters for consideration, had already been drawn, was drawn at the such questions being subject to review only on appeal or writ of error.

town of Murray, after such removal of the 2. In this case the objections raised to the le- county seat to the town of Wallace. The gality of the grand jury examined, and held to law provides that the jury shall be drawn at be untenable.

the office of the clerk, which is required to 3. The provisions of section 8300, Rev. St., providing for the sentence of persons convicted

be kept at the county seat, and, the law of crimes punishable by imprisonment in the not having been complied with in the drawstate penitentiary, has not been repealed or ing of such jury, the statement of the dismodified by subsequent legislation.

trict judge in his order that no jury had (Syllabus by the Court.)

been drawn was entirely correct. It is conApplication of Paul Corcoran for a writ of tended by counsel for the petitioner that "the habeas corpus. Denied.

court had no power or authority to make such order, and it was therefore null and the trial in Simmons v. Cunningham, or at void."

the commencement of the term at which said Section 3952, Rev. St., as the same stood trial was bad, were, only in a lesser degree, prior to the amendatory act of February 7, the same as existed at the opening of the 1899 (see Sess. Laws Idaho 1899, p. 335), was term at which the petitioner was tried and as follows: "Not less than fifteen nor more convicted; and the court, upon petition of than thirty days before the commencement the bar of Shoshone county, adjourned the of any term of the district court, the judge term from July 7th to July 16th, and disthereof, if a jury will be required therefor, charged all jurors theretofore drawn for such must make and file with the clerk an order term. On the convening of the court, on July that one be drawn. The number to be drawn 16th, a venire was issued, as provided in secmust be fixed in the order; if to form a tion 3961, and this action of the district court grand jury, it must be twenty, and if a was affirmed by this court. In the case at trial jury, such number as the judge may bar a much more serious condition of affairs direct." By the amendatory act referred to, existed. For a period of some eight years the said section was made to read as follows: organization known as the “Miners' Union" "The district court, or the judge thereof, if had had almost absolute control of the affairs a jury will be required at any term of the of Shoshone county; the election of all offidistrict court, must make and file with the cers of the county had been controlled by clerk an order that one be drawn. The that organization; all business was subject number to be drawn must be fixed in the or- to their domination and dictation; crimes of der; if to form a grand jury, it must be the most heinous character had been committwenty, and if a trial jury, such number as ted with impunity; and so intimidated had the judge may direct.” It will be seen that

been the law-abiding portion of the county, the only change made in the section by this who were vastly in the minority, that any inamendment is the elimination therefrom of vestigation of such crimes was practically the time within which such order must be impossible. That this condition of things had made, to wit: "Not less than fifteen nor existed from 1892 is matter of history. It is more than thirty days before the commence also matter of history that on April 29, 1899, ment of any term of the district court." a mob of something about 1,000 in numbers, The purpose and intent of the legislature in composed of members of the organization the enactment of this amendment is palpa- known as the "Miners' Union," and many of ble, and yet counsel for petitioner most ve- whom were masked, coming from the various hemently contends that this amendatory act mining camps in said county, overpowering repealed section 3961, Rev. St. This latter the railroad employés, came by train to section is as follows: "Sec. 3961. When- Wardner Junction, in said county, destroyed ever jurors are not drawn and summoned several hundred thousand dollars of property, to attend any court of record, or a sufficient and committed two murders. The county number of jurors fail to appear, such court commissioners, the sheriff, and the prosecutmay, in its discretion, order a sufficient num- ing attorney of said county were notoriously ber to be drawn and summoned to attend known to be, if not members of said organizasuch court; or it may, by order entered on tion, openly in sympathy with them. OD its minutes, direct the sheriff of the county May 4, 1899, such was the condition of things to summon so many good and lawful men of in said Shoshone county, by reason of the unhis county, to serve as jurors as the case may lawful, treasonable, and murderous acts of require. And in either case such jurors must said organization known as the "Miners' Un-. be summoned in the manner provided by the lon," and the members thereof, that the gov. preceding section." This contention of coun- ernor of Idaho issued his proclamation, desel rests entirely upon the assumption that claring said Shoshone county in a state of section 2 of the amendatory act provides that insurrection, and calling upon the federal "all acts and parts of acts in conflict with government for aid in the maintenance of the this act are hereby repealed," and that the law therein. At the convening of the district provisions of section 3961 are in conflict with

court in said Shoshone county, on the 8th day section 3952 as amended. It will hardly be of June, 1899, the district judge found the contended, we apprehend, that there was any officers of said county heretofore named unconflict between section 3952 and section der arrest by the military, authorities. It is 3961 before the amendatory act was passed, for one of the murders committed by said and how the amendment, which consists sole- mob on the 29th day of April, 1999, that the ly of the striking out from said section of petitioner was indicted and convicted. Unthe time within which the order of the court der the conditions above described, the disdirecting the drawing of the jury should be trict court ordered a jury to be summoned made, can create a conflict is entirely beyond under the provisions of section 3961, Rev. St., our comprehension.

and this action of the district court we conThis whole question was before this court sider legal, proper, and highly commendable. in the case of Simmons v. Cunningham, 39 We might have disposed of so much of this Pac. 1109, and the action of the district court case upon the ground that none of these quesin that case was sustained. The conditions tions involving the drawing, sunimoning, and existing in Shoshone county at the time of 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 reg. ulations 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 1899. This action is hereby dismissed, at re(Kan. Sup.) 58 Pac. 677, and cases there cited. quest of plaintiff, who paid all costs." The After a most careful and thorough examina- following paper was filed in said suit on the tion and consideration of the record in this same day, to wit: “District Court of Idaho, case and of the briefs of counsel, we are un- in the Second District. Joseph H. Boyd able to find any grounds for the granting of against William L. Spaulding and Willis the writ prayed for in the petition, and the Sweet. In Equity. No. 1,907. lt duly apsame is therefore denied.

pearing by the pleadings herein that the an

swer of defendants does not contain a counQUARLES and SULLIVAN, JJ., concur. terclaim or affirmative defense: Now, on mo

tion of R. L. Edmiston, one of the attorneys

for the plaintiff herein, it is ordered and ad(6 Idaho, 625)

judged that this action may be, and the same BOYD V. STEELE, Judge.

is hereby, dismissed on the payment by plain(Supreme Court of Idaho. Nov. 20, 1899.) tiff to the defendants or their attorney of the DISMISSAL-RIGHT OF PLAINTIFF TO DIRECT

sum of one dollar, the amount of defendants' -ENTRY IN REGISTER OF ACTIONS-ENTRY costs as taxed herein by the court. [Signed]

OF JUDGMENT-DUTY OF CLERK. 1. Under the provisions of section 4354, Rev.

Oscar Larson, Clerk, by E. C. Hall, Deputy. St., which provides that an action may be dis

R. L. Edmiston and Orland & Smith, Attormissed by the plaintiff at any time before trial, neys for plaintiff. Filed April 26, 1899. Os. upon payment of costs, provided a counterclaim car Larson, Clerk, by E. C. Hall, Deputy." has not been made or affirmative relief sought by the defendant, the plaintiff in such a case

On the 27th day of April, 1899, the plaintiff, is entitled to a dismissal upon payment of costs,

Boyd, brought another action for the same and filing his dismissal with the clerk.

cause in the circuit court of the United States, 2. The clerk could not defeat a dismissal by ' in the district of Idaho, against the same deneglecting or refusing to enter a formal judgment of dismissal.

fendants. The defendants appeared therein, 3. If the provisions of said section require a and filed a plea in abatement, upon the formal entry of judgment, it is one of the cases ground of the pendency of said suit in the in which the law presumes that to have been done which ought to have been done.

state court, and attached to said plea were 4. The omission to enter a judgment of dis- copies of papers, showing that an applicamissal did not defeat the plaintiff's dismissal of tion had been made to said state court to vasaid action, nor did such dismissal remain in

cate said order of dismissal; that on May 16, abeyance until the entry of judgment. (Syllabus by the Court.)

1899, said plea was overruled by said circuit

court, and thereafter, on July 1, 1899, said Application by Joseph H. Boyd for a writ

court made an order wherein it is recited that of prohibition directed to Edgar C. Steele, satisfactory evidence had been furnished, judge. Writ granted.

showing that an action between these parties W. T. Birdsall and Orland & Smith, for for the same cause was then pending in the plaintiff. Willis Sweet and S. S. Denning, for state court, and that said action was comdefendant.

menced prior to the one in the circuit court.

Further proceedings were ordered suspended SULLIVAN, J. This is an application for a in said circuit court until further order. The writ of prohibition, and arises out of the fol- defendants on May 25, 1899, moved to vacate lowing facts: The plaintiff, Joseph H. Boyd, and set aside said order of dismissal, supposbrought an action in the district court of the ing, as they say in their brief, that in attemptSecond judicial district, in Latah county, ing to dismiss said cause the attorneys for the against Willis Sweet and William L. Spauld- | petitioner had complied with the statutory reing, in which action plaintiff prayed that the quirements; that this misapprehension was assignment of a certain judgment obtained in due to the fact that counsel who drew the pethe case of said Spaulding against the Cour tition was in Spokane, Wash., and was not d'Alene Railway & Navigation Company, fully advised as to the nature and character of made by said Spaulding to defendant Sweet, the dismissal proceedings. When the petition be set aside and declared void, and that said to vacate said order of dismissal was presentBoyd be adjudged to be the owner thereof; ed to the district court, the court stated that for a temporary injunction, for a receiver, the document described as a judgment of disand for other relief, which is fully set out in missal was a void instrument, and therefore the prayer to said complaint. Defendants de- of no force or eifect; hence there was nothmurred to said complaint, which was overrul- ing to set aside or dismiss. Thereupon deed. Defendants thereupon filed separate an- fendant Spaulding filed his amended answer swers, and the plaintiff (who is petitioner here) and cross complaint. The day after the filing demurred to one answer, and moved to strike of said amended answer, the plaintiff, Boyd, the other. Said plaintiff thereafter, on the by his attorneys, who appeared specially for 26th day of April, 1999, through his attorney, that purpose, and no other, moved for a nunc directed the clerk of said court to enter up- pro tunc order dismissing said action, which on the proper page in the register of actions motion was denied on the grounds that the a dismissal of said suit. The clerk made the provisions of section 4354 that apply to a following entry in said book: "April 26th, plaintiff dismissing his action had not been 1899. Order of dismissal filed April 26th, | complied with by the plaintiff. Said provisions are as follows: "An action may be dis- | by him on said 26th day of April, 1999, a missed, or a judgment of nonsuit entered in copy of which is above given. On said 26th the following cases: (1) By the plaintiff him- day of April said clerk made an entry of the self, at any time before trial upon the pay- dismissal of said action in his register of acment of costs; provided, a counter-claim has tions. Under those facts, was said action not been made or affirmative relief sought by dismissed? the cross-complaint or answer of defendant. It is contended by defendant that this acIf a provisional remedy has been allowed the tion was not and could not be dismissed until undertaking must thereupon be delivered by the judgment was entered in the judgment the clerk to the defendant, who may have his book; and he cites several authorities in supaction thereupon; (2) by either party, upon port of his contention, and, among them, the written consent of the other; (3) by the Adams v. McPherson, 2 Idaho, 855, 27 Pac. court, when the plaintiff fails to appear on the 577; Durant v. Comegys, 2 Idaho, 810, 26 trial, and the defendant appears and asks for Pac. 755; and Ah Kle v. McLean, 2 Idaho, the dismissal; (4) hy the court, when, upon 811, 26 Pac. 937. Those cases went off on the the trial, and before the final submission of ground that the transcripts failed to show the case, the plaintiff abandons it; (5) by the that a judgment had been entered; and as court, upon motion of the defendant, when, section 4807, Rev. St., provides that an apupon the trial, the plaintiff fails to prove a peal may be taken within a definite time sufficient case for the jury. The dismissal therein fixed, after the entry of judgment, mentioned in the first two subdivisions is the court held that the transcripts must made by an entry in the clerk's register. show that judgment had been entered before Judgment may thereupon be entered accord- the appeal was taken, the entry of judgment ingly.” So far as shown to the court below, being a prerequisite to the right of appeal. the plaintiff had paid the costs, and had the Stearns v. Aguirre, 7 Cal. 443, is cited by following entry made in the register of ac- counsel for respondent. In that case two tions by the clerk, to wit: “April 26, 1899. defendants were jointly sued, and service This action is hereby dismissed at request of had on both. One answered, and the other plaintiff, who paid all costs." That court did not. The latter's default was entered, says, inter alia, “No dismissal has been filed and, without the authority or direction of the by the plaintiff, and the clerk, being governed court, the clerk entered judgment by default by the rules which control ministerial officers, against him. The court held, under section must be required to have these prior steps 32 of the practice act, and under the facts taken, or else his entering judgment would be of that case, that the clerk had no authority void.” That decision goes off on the point to enter judgment. The rule there laid down that the said statute requires the plaintiff to cannot apply to the case at bar. The judg. file a dismissal, and that he had failed to ment there entered was not one of dismissal file it.

made on the order or request of the plaintiff. We have, perhaps, gone more into the The same may be said of Kelly v. Van Ausfacts of this case than was necessary to a tin, 17 Cal. 564. In James v. Centre, 53 Cal. decision of the question raised; but it is 31, it is held that a judgment of dismissal one of more than ordinary importance, and may be entered by the clerk on the applicawe desire to present the facts quite fully. tion of the plaintiff, notwithstanding a cross The question for decision is, did the plaintiff complaint had been filed, provided the cross dismiss said action, under the provisions of complaint did not set up a counterclaim. said section 4354, Rev. St.? It is not contend- The court says: “The judgment of dismissal ed that the answer contains a counterclaim, in form entered by the clerk was properly and it is not seriously contended that affirma- entered, inasmuch as no counterclaim had tive relief is sought by the answer or cross been made." That case does not hold that complaint, except that the statute of limita- it is absolutely necessary for a judgment of tions is set up as a defense. We do not think dismissal to be entered, before the dismissal that the plea of said statute is a counter- shall take effect. In McLeran v. McNamara, claim or a demand for affirmative relief, 55 Cal. 508, which was an action in ejectwithin the meaning of the term "affirmativement, involving more than one piece of real relief," as used in said section. It appears estate, and against several defendants, the from the record that the attorney for plain- attorneys for the plaintiff filed a written tiff appeared at the office of the clerk of said dismissal of the action as to some of the dedistrict court on the 26th day of April, 1899, fendants (naming them), and as to some of and inquired of said clerk the full amount the real estate (describing it); and an entry of costs due in said case, including defend- of such dismissal was entered by the clerk ants' costs and the cost of entering judgment in the register of actions, but no judgment of dismissal; and, when the clerk informed of dismissal was entered. The court quotes him, he thereupon paid all of said costs, and a part of the practice act then in force, which demanded a dismissal of said action, and at was like our section 1354; and, after quoting the same time presented a formal judgment as follows: "The dismissal mentioned in of dismissal, duly signed by R. L. Edmiston the first two subdivisions shall be made by and Orland & Smith, attorneys for plaintiff, entry in the clerk's register. Judgment may which was duly signed by the clerk and filed thereupon be entered accordingly," – the

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