DONALDSON, Chief Justice, specially concurring.

I feel it necessary to specially concur so as to answer some of the allegations contained in Justice Bistline's opinion. The first allegation is that there was improper involvement by the Court in the drafting of the 1982 Traffic Infractions Act. Article 5, § 2 of the Idaho Constitution states that the courts shall constitute a unified and integrated judicial system for administration and supervision by the Supreme Court. Article 5, § 25 of the Idaho Constitution requires the justices of the Supreme Court to report defects and omissions in the laws annually to the governor to be transmitted to the legislature. Since territorial days, the Supreme Court has reported defects in the laws to the legislature, and in the case of the Idaho Traffic Infraction Act, this was done. On November 17, 1981 the "Defects in the Laws Letter," of the Supreme Court pointed out the need for technical amendments to the original Traffic Infractions Act of 1981. The Idaho Traffic Infractions Act originally was passed during the First Regular Session of the 46th Idaho Legislature in 1981. That original Act, HB 343, 1981 Idaho Session Laws, Chapter 223, was proposed without any involvement by the judicial branch of government. The original 1981 Act was drafted and proposed by the Idaho Prosecuting Attorneys Association, and that Association presented and explained HB 343, at various legislative committee hearings. The only judicial involvement with HB 343 during the 1981 legislative session was in identifying a number of serious defects in HB 343, and in recommending to the germane legislative committees, that the bill be amended to change the effective date from the original July 1, 1981, to July 1, 1982, in order to allow the Legislature to consider correcting the defects identified.

During the 1982 legislative session, the Idaho Legislature adopted a series of amendments were incorporated in HB 541, which went into effect on March 1, 1983. Many of the amendments proposed in HB 541, had been recommended by a special study committee which had been appointed by the Supreme Court to identify defects in the 1981 law. The committee appointed by the Supreme Court included representatives of courts, law enforcement, the defense bar, district court clerks, and the Idaho Association of Cities. HB 541 was debated and revised in four separate meetings of the House Judiciary and Rules Committee, which also took suggestions for amendments from the state Attorney General's office, and the state Department of Transportation (which department was required to implement the amendments).

Justice Bistline's opinion also has suggested that the Supreme Court, as an institution, has a substantial financial interest in the Traffic Infractions Act. This comment deserves correction. Revenues from fines and court costs assessed for traffic infractions are distributed by statute to a number of state and local funds, including the State General Account; the District Court Fund; City General Account; the Public School Income Account; the State Highway Account; and the Peace Officers Standards and Training Account. Not one dime of the revenue from any traffic infraction, cost, fee, or penalty is distributed in any way to the Idaho Supreme Court, or is it directed to the state judicial appropriations.

Finally, Justice Bistline's opinion is incorrect in its suggestion that communicating with and giving advice by administrative personnel of the Court to the legislature involves the Doctrine of Separation of Powers, through judicial exercise of powers reserved to the legislature. Such a view misunderstands the doctrine. Article 2, § 1 of the Idaho Constitution divedes the powers of the state government into three distinct departments; the legislative, executive and judicial, and it further provides that "No person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

The legislative power is the power to legislate, i.e., enact laws. The presentation to the legislature of suggestions for improvement of the laws does not constitute the act of legislating.

As this Court stated in Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962):

"It is the basic powers of sovereignty which must remain separate; not subsidiary activities which include the ascertainment of facts, investigation and consultation, the duty of reporting facts and making recommendations, for the purpose of carrying out those basic powers. (Emphasis supplied).

The Supreme Court has the constitutional duty and responsibility to recommend amendments to the legislature where it identifies defects or omissions in the laws. It, therefore, will continue to carry out its responsibility to identify defects and to recommend changes in the laws which will assist the legislature in discharging its legislative duties, both when requested or when it deems it in the public's best interest.

BISTLINE, Justice.

I.

Although I strongly doubt whether the infractions legislation, as modified by rules promulgated by the Idaho Supreme Court, passes constitutional muster, I do not dissent from the majority opinion; nor do I join it, being assailed by strong doubts that this Court, as constituted in this case, should be deciding it at all. My reason for so believing is that this Court's involvement in the drafting of the 1982 Traffic Infractions Act gives rise to an appearance of impropriety.

Unbeknownst to the plaintiff in this action, and probably unknown to the legislators who voted for and against it, the house bill which became the Traffic Infractions Act, and is now under constitutional challenge as violative of the right to trial by jury, was drafted in the Supreme Court Building by employees of the Supreme Court. The bill was then handed to the House Judiciary Committee which in turn started it on its path toward becoming law. In my view this was an absolutely impermissible violation of the doctrine of separation of powers — a mainstay of our Idaho Constitution, and of most constitutions. My concern was not only with the irregularity of a supreme court drafting legislation, but also with the problem which was bound to arise when a challenge would be made to its constitutionality. That challenge is now before the Court, and the other members of the Court do not hesitate to pass upon the issue of constitutionality.

After the instant case had been taken under consideration, rather than engage in futile discourse, I first considered the possibility of abstaining from any participation by reason of the foregoing considerations. Meanwhile, however, the United States Supreme Court handed down its decision in Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). Upon a full consideration of the judicial philosophy of that case, I was inexorably drawn to the conclusion that at the least the parties to this controversy are entitled to be fully apprised of this Court's involvement in the history of the litigation at stake, in order that they can make an informed judgment as to any motions believed to be in order. True, there is no direct pecuniary interest by any member of this Court. But equally true, the judicial system as a whole benefits indirectly, and, in making budget requests to the legislature, is able to remind the Department of the substantial revenues which the Infractions Act produces each year. This, however, is the least of my serious concerns. My primary concern is simply that the drafting of proposed laws is not the business of the Idaho Supreme Court, but the business of the Idaho legislature. Moreover, that this is true and not in the least debatable is a historical fact as well as a fundamental of our Idaho Constitution.

In 1963 the legislature of this growing state saw the need for a legislative council, and created one. I.C. § 67-427. Section 67-429 is of special significance. Paragraphs (1) and (2) are lightly pertinent; and have not been changed by any amendments:

67-429. Powers and duties. — (1) It shall be the duty of the council to collect and compile information, to draft bills and to conduct research upon any subject which the legislature may authorize or direct or upon any subject which it may determine, provided that all activities of the council must be reasonably related to a legislative purpose. The legislature may make specific assignments to the council by a concurrent resolution approved by both houses. (2) The council may hold public hearings and it may authorize or direct any of its committees to hold public hearings on any matters within the jurisdiction of the council.

The legislative council is funded, as I understand it, as a year-round function. The council appoints committees it deems necessary, and those committees may be members of the council and other members of the legislature. It is directed to appoint a research director and it may employ such other persons and/or agencies as it deems necessary, or deems desirable. Those employed are given a salary. I.C. § 67-428.

Not being conversant with the activities which are directed by the legislative council, I am given to understand that legislation is drafted under its auspices, and that there is a considerable year-round staff, which is properly funded. In this instance, it was neither a reasonable nor proper function of the Supreme Court to undertake a task as monumental as rewriting legislation which it opined was in need thereof. The legislature's budget is geared for that activity. The Court's budget is not.

Article 5, § 25 of our Idaho Constitution provides, in unmistakably clear language, how far, and no farther, the Supreme Court may go in affecting the legislative process. With constant regard for the doctrine of separation of powers the Framers made the governor the intermediary through which the Supreme Court may transmit its observation as to defects or omissions in the laws:

Defects in laws to be reported by judges. — The judges of the district courts shall, on or before the first day of July in each year, report in writing to the justices of the Supreme Court, such defects and omissions in the laws as their knowledge and experience may suggest, and the justices of the Supreme Court shall, on or before the first day of December of each year, report in writing to the governor, to be by him transmitted to the legislature, together with his message, such defects and omissions in the Constitution and laws as they may find to exist.

This section of the Constitution is blatantly violated whenever the Court bypasses the office of the governor. The Court did, in its 1981 letter, properly write to the governor in November of 1981, and did mention defects, and in doing so, disclosed ongoing Court involvement in a strictly legislative area:

TRAFFIC INFRACTIONS ACT AMENDMENTS

The Idaho Traffic Infractions Act is scheduled to take effect on July 1, 1982. A special study committee appointed by the Chief Justice has pinpointed serious technical difficulties with the new Act. That study committee has prepared a detailed report and 60 pages of proposed amendments to the Act to make it workable. These recommendations should be reviewed and considered as early as possible in the 1982 legislative session.

Indeed, where there should have been a legislative interim committee, or the Legislative Council itself, attending to the defective legislation, the Court had entered the field and Chief Justice Bakes had appointed a "study" committee. Chief Justice Bakes did so at the behest of a conclave of administrative judges and trial court administrators. The committee appointed by Chief Justice Bakes in May of 1981 not only did not name a single legislator, but did not utilize any Legislative Council personnel or resources — nor were any legislators invited to participate. District Judge John Maynard of Lewiston, Idaho, was named "Honorary Chairman," but the designated actual chairman of the committee, and reporter as well, was Mr. Bianchi, the Administrative Director of the Courts. A letter to Judge Maynard from the Chief Justice advised him of his appointment and the nature of the undertakings:

As you know, the judiciary supported the amendment which delayed implementation of the Idaho Traffic Infractions Act until July 1, 1982. The charge to this committee is to study thoroughly the provisions of the existing Act and to recommend to the legislature during its 1982 session amendments which will make the Act work more smoothly. In this regard I would hope the committee will be able to examine all aspects of the new law, from administrative issues such as the form of the citation/complaint to legal and philosophical issues such as the impact of the Act on county and city ordinances and the role of the judge in the new decriminalized hearings.

The meetings of the committee appear to be only two in number, and the minutes are attached as Appendices A and B. The first meeting, on June 12, 1981, was largely a philosophical discourse whereat those appointed to the committee were supportive of the Chief Justice's program for rewriting the 1981 Traffic Infractions Act. Mr. Lon Davis, who for years has been the Court's one and only staff attorney, was present as liaison to the Supreme Court Criminal Rules Committee. To him would be allotted the burden of undertaking the task.

The committee met again on August 14, 1982, and again shared views, after which:

The committee voted overwhelmingly to adopt the Lon Davis draft approach of establishing a separate category for infractions and retaining the general criminal case process. It was agreed to attempt to prepare an amending bill to the original House Bill 343 if possible, but that if this proves unworkable, the committee recommends repealing the original Traffic Infractions Act and proceeding with the Lon Davis draft approach.

Mr. Bianchi had earlier "reported on administrative judges to the original committee approach, and then reviewed the [Lon Davis?] July 7 draft which was recommended by the committee."

It was apparently agreed that the approved draft would be sent to the Chief Justice, and also to the Chairman of the Judiciary Committees of the two houses. No thought was given to the constitutional requirement that defects and omissions must be transmitted to the legislature through the office of the governor. This was not a message of defects and omissions, but a message of proposed legislation which would be a far cry from the 1981 Act.

When the proposed legislation came up for discussion in the House Judiciary Committee on January 25, 1982, Mr. Bianchi was there as a guest, and explained the amendments and the Court's involvement in proposing the amendments. When the bill came before the same committee on February 11, 1982, it was argued that the 1981 Act be repealed or the proposed amendments be adopted.

A Mr. Bob Hallstrom spoke in opposition to the bill on the basis of the constitutional right to a trial by jury. Mr. Bianchi stated that although this was not his bill he would try to prepare language that would address the questions raised by the committee and present his recommendations as soon as possible.

At the same committee's February 25, 1982 meeting, Mr. Bianchi was present, and the minutes show what he described as actions of the Court:

AMENDMENTS TO TRAFFIC INFRACTIONS.

Carl Bianchi pointed out that this bill is not a court bill, but the court has attempted to make it workable. These amendments must either be passed or a repeal of last year's law is needed. He referred to the letter from the attorney general regarding the constitutional questions which had been raised earlier in committee. It is his feeling that the answers provided were adequate to remove the objections expressed.

Other people also were allowed to address the committee and their remarks are available, being of public record.

Two days later, March 5, 1982, Mr. Bianchi again addressed the same committee. According to the minutes:

AMENDMENTS TO H. 541 TRAFFIC INFRACTIONS.

Carl Bianchi reported to the committee that the amendments before them had been prepared in response to objections by Bob Hallstrom and the various people who were concerned with the right to a trial by jury. The infraction is now a civil offense, not constituting a crime and is punishable only by a penalty. The criminal rules of procedure will still be followed, giving the public more protection. There is also a major change in the effective date, extending it to March 1, 1983 in the event there is an error in the final preparation and the legislature might need to examine the bill during the next session. Mr. Bianchi stated that he had addressed the concerns regarding bicycle safety, and as amended this is now a good, workable bill.

Of course, insofar as the legislature knows, or anyone else for that matter, when Mr. Bianchi speaks, he is speaking for the Court as a whole — not just the Chief Justice. It is a natural assumption, and one not improperly done. It may have been true that his active participation at a legislative committee meeting had approval of a majority of this Court. That I do not know, nor do I need to know.

The net outcome of the creation of a court committee by Chief Justice Bakes, appointing the Court's Administrative Director as chairman and reporter, and his activities before the house committee would certainly create the impression that this was a Court bill — notwithstanding remonstrances to the contrary. The Supreme Court's spokesman emissary to the legislature — as is certainly the appearance — not only would lead the legislators to believe that the Court itself observed no constitutional infirmity, but also that the attorney general saw no constitutional problems.

In my view, it is a basic sovereign power of the legislature to legislate, and the Court has no authority whatever to participate in that legislative process, although it does have an obligation to transmit observed defects and omissions in the law to the governor, who in turn will pass them on with such comment and recommendation as the governor sees fit.

Where the Court meddles in the legislative process itself, it renders itself disqualified from being the judge of the constitutionality of legislation where in this case it has drafted the legislation in question, implicitly expressing confidence in the constitutional integrity of that legislation, and additionally, by agent, has expressly passed on the question.

It must be remembered that the attorney general was not all that certain as to that question, and did not presume to theorize what the Supreme Court might do. It is to be very much doubted that the attorney general knew of the Court's involvement, or, if knowing, that he saw where his comment would be appropriate.

For my part, I see the opinion of the attorney general as suggesting that there was indeed a constitutional question that might arise, and the answer was an unknown.

Conceding after a review of the 1981 Traffic Infractions Act that it was not the best of legislation, why the Court intervened in this particular instance is another big unknown. Why the legislature, with its Legislative Council, staff, and budget of that Council, was not left to its own devices is something to ponder over. The Court sees much legislation which needs to be rewritten. Just the other day at Twin Falls in a medical indigency case, St. Alphonsus v. Twin Fall County, Chief Justice Donaldson observed most cogently:

JUSTICE DONALDSON: Mr. Webb, I have suggested to several counsel sitting where you are, on the appellant's side, that they should get together and try to make some sense out of these statutes. I've talked to — suggested to Mr. Goins and to Mr. Williams, I believe, several — and you're making an argument to the legislature. We're not the legislature. We do the best with what we've got to work with which are the statutes, which are ambiguous, which are inartfully drawn, which have a host of problems, and why can't they get together and try to draft a statute that makes some sense to both parties, no matter how you slice it so everybody knows where they're going.

That was exactly what Chief Justice Bakes should have been telling these administrative judges and trial court administrators when they wanted the Court to get into the legislative act. Where the final paragraph of the attorney general's opinion in and of itself should have caused a post-haste retreat, on the contrary, the Court's emissary, fully warned that the Court itself would be faced with a very difficult question, went boldly ahead. By that time one would suppose there would have arisen, unfortunately, a certain pride of accomplishment.

The better course for the legislature to have taken would have been to eschew the benefit of the Court's helpful hand, and taken Attorney General Leroy's suggestion that a constitutional amendment be proposed to the 1982 electorate. As it turned out, if recollection serves me correctly, every proposed amendment was ratified.

Only because of interest, I am adding a Part II which may be informative to the public, and might have been part of a dissent from the issue decided today, other than that the Court has done what it has done, and all the dissents in the world will not turn it one whit.

Questions as to impartiality are particularly important in a case as close as this one. Although the majority opinion does provise what appears to be a careful and thorough analysis, that same analysis just as easily could have brought about the opposite result. Briefly, I will endeavor to demonstrate.

Whether or not the punishment imposed by the Infractions Act can be characterized as "criminal" or "noncriminal," the fact remains, as the majority concedes, that an offense is criminal. The majority itself notes that the legislature's "labeling of infractions as civil" was "ineffective in light of Article 5, § 1 . . . ." Consequently, where Article 1, § 7 mandates a jury trial for all criminal actions, then it would mandate a jury trial no matter how light the potential punishment. Admittedly, Article 1, § 7 does not explicitly say that the right to a jury trial attaches to all criminal prosecutions. However, as the majority carefully documents, the right to a jury trial did attach to all criminal prosecutions at the time the Constitution was framed. The facts that the system in 1890 guaranteed a jury for all criminal prosecutions and that Article 1, § 7 mandates that this right "shall remain inviolate," argues for a right to jury trial for all criminal prosecutions, no matter whether the penalty is jail time or, more severe, a fine coupled with the threat of confiscation of an offender's drier's license — a most vicious sanction, and one which heretofore was properly reserved for drunk drivers.

The following observation by the majority supports me in this brief comment:

Article 1, § 7 also included the following language: "[T]he legislature may provide that in all cares of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, expressed in open court . . . ." The implication of the first sentence as quoted is that in "all cases of misdemeanors" there is the right to a jury, five-sixths of which may render a verdict. The implication of the second sentence is that "in all criminal cases" there is a right to a jury, which may be waived in the case of non-felony cases. The inferred intention to afford a jury trial in every criminal case, whether involving a serious or a petty offense, would be consistent with the provisions of the territorial statutes at the time of statehood. Majority op. at 49-50, 730 P.2d at 969-70.

If the Framers intended "to afford a jury trial in every criminal case, whether involving a serious or a petty offense," then there would be a right to a jury trial for traffic infractions.

I agree with the majority that the Farmers wished to involve the jury in standing between the state and the prison cell. It does not necessarily follow, however, that the Farmers' concern ended at that point. The Farmers might well have believed that the conviction of any crime sufficiently indicated "community condemnation" and "punitive intent" to warrant a jury.

The Act creates a novel category of offenses (formerly misdemeanors with misdemeanor penalties of fine and imprisonment). The Act stated in a number of places that penalties would never include any incarceration. Yet, under the Act as amended by the Court rules, where formerly an offender would have the option of paying his fines or "sitting it out" in jail at so much per day, now, under the Infractions scheme, the offender who does not pay his fine will find his driving privileges suspended until he does so. Further, if his driving license has been suspended — no hearing allowed — then the offender is guilty of an offense as often as he does so, and is thereby eligible for a great deal of jail time — and still owes the money.

My point is not so much to disagree with the result reached today. The majority makes a strong case for excepting from Article 1, § 7 those offenses now punishable as so-called civil offenses even though they technically are criminal in nature. There also is the unspoken concern over the onerous burden the state would bear if it was obligated to afford a jury to every person cited for a traffic infraction. My point is to illustrate the difficulty of the question presented by a case where this Court as a whole is not above suspicion by reason of the impermissible drafting of legislation; especially does this seem so where there has been no disclosure — leaving that sad duty to this writer who did not participate, but nevertheless stands as suspect as the rest.

I do not suggest that the members of this Court are incapable of a detached, impartial review of the constitutionality of legislation drawn under high judicial auspices. There is, however, the danger of the appearance of impropriety.

II.

Just prior to the Constitutional Convention, the Fourteenth Session of the Territorial Legislature codified all existing laws into the 1887 Revised Statutes of Idaho. Title VIII thereof was entitled:

OF CRIMES AGAINST THE PERSON AND AGAINST PUBLIC DECENCY AND GOOD MORALS [public offenses].

Apparently not a well-known fact by the other members of the Court, there were even in those early territorial days public highways, and laws criminalizing certain conduct on and/or in connection with those highways. A five-minute effort produces a few of the following offenses which the legislature itself deemed necessary in regard to the highways:

Sec. 6928. Every person driving any conveyance drawn by horses, upon any public road or way, who causes or suffers his horses to run, with intent to pass another conveyance, or prevent such other from passing his own, is guilty of a misdemeanor.

Sec. 6922. Every person not exempt from pay tolls, who crosses on any ferry or toll bridge, or passed through any toll gate, lawfully kept, without paying the toll therefor, and with intent to avoid such payment, is punishable by fine not exceeding twenty dollars.

Sec. 6923. Every person in charge of a locomotive engine, who, before crossing any traveled public way, omits to cause a bell to ring or steam whistle to sound at the distance of at least eighty rods from the crossing, and up to it, is guilty of a misdemeanor.

Sec. 6924. Every person who is intoxicated while in charge of a locomotive engine, or while acting as conductor or driver upon any railroad train or car, whether propelled by steam or drawn by horses, or while acting as train dispatcher or as telegraph operator, receiving or transmitting dispatches in relation to the movement of trains, is guilty of a misdemeanor.

Sec. 6882. Any owner, or other person in charge of any herd or drove of live stock who willfully or negligently injures any resident of the Territory by driving or moving such herd or drove from any public highway, and herding or grazing the same on land occupied and improved by any settler in possession of the same is guilty of a misdemeanor.

Sec. 7135. Every person who maliciously removes or injures any mile board, post, or stone, or guide post, or any inscription on such, erected upon any highway, is guilty of a misdemeanor.

Sec. 7138. Any person who obstructs, injures, or damages any public road, street or highway, either by placing obstruction therein or by digging in, deepening or deviating the water of any stream, or by placing any obstruction in any ditch or stream within or along any public road, street or highway, or by placing or constructing any obstruction, ditch or embankments upon their own or other lands, so as to make or cause any water to flow upon or impair any public road, street or highway, or rides or drives upon and along the sidewalk of any road, street or highway, whenever such sidewalk has been graded or graveled, located designated by any order of the Board of Commissioners or city council, or prepared in any other manner dedicating and designating the same for and to that particular use and purpose, either by the property owner or by the public, or in any other manner injures or obstructs any public road, street or highway, is guilty of a misdemeanor.

Sec. 7139. Any person who runs water across any public highway, road or street, without first constructing a good and sufficient ditch or ditches to convey the same, who fails to bridge such ditch or ditches, or to keep such bridge or bridges, or ditches in good repair, and all persons, companies or corporations who suffer any water used by them for the purpose of irrigation, or any other purposes, to flow into or upon any public highway, road or street, in any other manner than that authorized by law, is guilty of a misdemeanor, and upon conviction thereof must be fined in any sum not less than twenty-five nor more than fifty dollars, together with the costs of suit, and for a second offense, double said fine and costs; and it is hereby made the duty of all road supervisors, constables and marshals, to make complaint before the proper court, for violations of this section, whenever notified or having knowledge thereof.

What of public offenses before the Constitution was adopted? No different than as provided in the Constitution. The 1887 Revised Statutes tell us this.

Section 7480. Every person is liable to punishment by the laws of this Territory, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States.

Sec. 7481. When the commission of a public offense, commenced without the Territory, is consummated within its boundaries, the defendant is liable to punishment therefor in this Territory though he was out of the Territory at the time of the commission of the offense charged. If he consummated it in this Territory through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the jurisdiction is in the county in which the offense is consummated.

Sec. 7482. When an inhabitant or resident of this Territory, by previous appointment or engagement, fights a duel or is concerned as second therein, out of the jurisdiction of this Territory; and in the duel a wound is inflicted upon a person, whereof he dies in this Territory, the jurisdiction of the offense is in the county where the death happens.

Sec. 7483. When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.

Sec. 7484. When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.

What was the procedure in Idaho before the Constitution was adopted? Much as it has been since statehood, almost 100 years, and up until the enactment of the Traffic Infractions Act:

PART II. — OF CRIMINAL PROCEDURE [1887 R.S.].

Section 7350. No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof.

Sec. 7351. Every public offense must be prosecuted by indictment, except:

1. Where proceedings are had for the removal of civil officers of the Territory;

2. Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this Territory may keep, with the consent of Congress, in time of peace;

3. Offenses tried in Justices' and Probate Courts.

Sec. 7352. The proceedings by which a party charged with public offense is accused and brought to trial and punishment, is known as a criminal action.

Sec. 7353. A criminal action is prosecuted in the name of the Territory of Idaho, as a party, against the person charged with the offense.

Sec. 7354. The party prosecuted in a criminal action, is designated in this Code as the defendant.

1. To a speedy and public trial;

2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel.

Sec. 7356. No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.

Sec. 7357. No person can be compelled in a criminal action, to be a witness against himself, nor can a person charged with a public offense, be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.

Sec. 7358. No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon a judgment of a Probate or Justice's Court, a jury having been waived, in a criminal case not amounting to a felony.

Not only were there those particularly pertinent misdemeanor offenses which are first set out above, but a whole host of other misdemeanors, some of which many people of the time (and likely even now) probably thought should not have been public offenses, but rather so-called "petty offenses," a category which at that time had absolutely no recognition in Idaho. These are found in the General Index to the Revised Statutes:

MISDEMEANORS, list of, aiding or advising commission of suicide . . . . . . . . 6932 adulterating food, drugs, liquors, etc. . . . . . . . . . 6918 altering telegraph messages . . . . . . . . . . . . . . . 7168 animals, poisoning . . . . . . . . . . . . . . . . . . . 7152 assaults defined . . . . . . . . . . . . . . . . . . . . 6727 assaults by officer under color of authority . . . . . . 6516 attempts to vote, not being qualified . . . . . . . . . . 6357 attempts to extort by verbal threats . . . . . . . . . . 7086 attorney defending certain cases . . . . . . . . . . . . 6525 attorney buying demands in suit . . . . . . . . . . . . . 6524 refusal to pay over money collected for another . . . . . 6523 burning or injuring rafts . . . . . . . . . . . . . . . . 7163 barratry, common . . . . . . . . . . . . . . . . . . . . 6521 battery defined . . . . . . . . . . . . . . . . . . . . . 6729 betting on elections . . . . . . . . . . . . . . . . . . 6366 bridge or ferry, crossing without paying tolls . . . . . 6922 burglarious tools, having . . . . . . . . . . . . . . . . 7022 buying appointment to office . . . . . . . . . . . . . . 6386 buying demands in suit, by attorney . . . . . . . . . . . 6524 catching fish by poisonous substances . . . . . . . . . . 7197 changing telegraphic messages . . . . . . . . . . . . . . 7168 child, omission to furnish necessaries to . . . . . . . . 6782 clandestinely learning contents of message . . . . . . . 7207 compounding offenses . . . . . . . . . . . . . . . . . . 6518 consignee, etc., making false statement . . . . . . . . . 7099 criminal contempts . . . . . . . . . . . . . . . . . . . 6529 criminal conspiracy . . . . . . . . . . . . . . . . . . . 6540 dead animals, putting in streets and rivers, etc. . . . . 6914 deadly weapons, rudely exhibiting . . . . . . . . . . . . 6961 deadly weapons, having . . . . . . . . . . . . . . . . . 7023 deer, killing . . . . . . . . . . . . . . . . . . . . . . 7185 defacing or removing landmarks . . . . . . . . . . . . . 7160 destroying evidence . . . . . . . . . . . . . . . . . . . 6502 director of corporation, misconduct of . . . . . . . . . 7117 disclosing contents of telegraphic message . . . . . . . 7167 disturbing religious meetings . . . . . . . . . . . . . . 6820 disturbing peace . . . . . . . . . . . . . . . . . . . . 6959 dog and cock fighting . . . . . . . . . . . . . . . . . . 6958 elections, attempt to vote not being qualified . . . . . 6357 elections, betting on . . . . . . . . . . . . . . . . . . 6366 elections, intimidating, corrupting, etc., electors . . . 6364 elections, judge of unfolding or marking ticket . . . . . 6360 elections, procuring illegal voting . . . . . . . . . . . 6358 elections, refusal by voter to be sworn . . . . . . . . . 6355 elections, refusal to answer questions by officers of . . 6355 escape from prison other than territorial . . . . . . . . 6454 evidence, destroying . . . . . . . . . . . . . . . . . . 6502 exposure, indecent, person, pictures, etc. . . . . . . . 6840 exposure of persons having contagious disease . . . . . . 6927 exposure, threatening by letter . . . . . . . . . . . . . 7210 fighting duel, posting for not . . . . . . . . . . . . . 6714 fire, setting, to woods, etc. . . . . . . . . . . . . . . 6921 fish, catching out of season . . . . . . . . . . . . . . 7193 fish, catching by poison . . . . . . . . . . . . . 7192, 7197 fish, catching by permanent contrivances . . . . . . . . 7193 forcible entry and detainer . . . . . . . . . . . . . . . 6962 forcible entry, returning to retake. . . . . . . . . . . 6963 frauds, by debtor concealing property . . . . . . . . . . 6519

frauds, by defendant in same . . . . . . . . . . . . . . 6520 frauds, by personation . . . . . . . . . . . . . . . . . 7093 frauds, in conveyancing . . . . . . . . . . . . . . . . . 7095 frauds, in obtaining money, false pretense . . . . . . . 7096 frauds, in weights and measures . . . . . . . . . . . . . 7107 frauds in stock subscriptions . . . . . . . . . . . . . . 7114 frauds in using name in prospectus . . . . . . . . . . . 7116 gambling defined, etc. . . . . . . . . . . . . . . . . . 6850 gambling permitted in house . . . . . . . . . . . . . . . 6851 game laws, violating . . . . . . . . . . . . . . . . . . 7185 glanders, neglecting to kill animal having . . . . . . . 6933 grand jurors, acting after challenge allowed . . . . . . 6527 grand jurors, disclosing transactions of . . . . . . . . 6532 grand jury, disclosing fact of indictment found . . . . . 6531 gunpowder, keeping unlawfully . . . . . . . . . . . . . . 6915 illegal marriage . . . . . . . . . . . . . . . . . . . . 7092 imprisonment, false . . . . . . . . . . . . . . . . . . . 6721 injuring gas and water pipes . . . . . . . . . . . . . . 7171 injuring levees, etc. . . . . . . . . . . . . . . . . . . 7162 injuring mile-stones and guide-boards . . . . . . . . . . 7132 injuring standing crops . . . . . . . . . . . . . . . . . 7159 injuring telegraph lines . . . . . . . . . . . . . . . . 7136 injuring toll-houses, etc. . . . . . . . . . . . . . . . 7134 injuring works of art . . . . . . . . . . . . . . . . . . 7170 intoxication, malpractice by physician from . . . . . . . 6860 intoxication, engineer . . . . . . . . . . . . . . . . . 6924 keeping disorderly house . . . . . . . . . . . . . . . . 6842 keeping pest house within certain limits . . . . . . . . 6913 larceny petit . . . . . . . . . . . . . . . . . . . . . 7049 larceny of water . . . . . . . . . . . . . . . . . . . . 7059 legislature, witness refusing to testify before . . . . . 6414 libel defined . . . . . . . . . . . . . . . . . . . . . . 6737 libel, threats to publish . . . . . . . . . . . . . . . . 6745 license, doing business without . . . . . . . . . . . . . 6983 malicious injuries to freehold . . . . . . . . . . . . . 7158 malicious mischief . . . . . . . . . . . . . . . . . . . 7150 nuisance, maintaining . . . . . . . . . . . . . . . . . . 6912 oath, refusing to take, when offering to vote . . . . . . 6355 obstructing public highway . . . . . . . . . . . . . . . 7138 running water on highway . . . . . . . . . . . . . . . . 7139 officer, concealing person from writ . . . . . . . . . . 6878 officer, cruel treatment of lunatics . . . . . . . . . . 6875 officer, delay in presenting arrest to magistrate . . . . 6512 officer, disclosing evidence before grand jury . . . . . 6532 officer, disclosing fact of indictment found . . . . . . 6531 officer, exercising duties of, wrongfully . . . . . . . . 6388 officer, escape from . . . . . . . . . . . . . . . . . . 6454 officer, extortion by executive. . . . . . . . . . . . . 6383 officer, extortion in fees . . . . . . . . . . . . . . . 7083 officer, failure to pay over fines . . . . . . . . . . . 6978 officer, false representations to assessor . . . . . . . 6979 officer, inhumanity to prisoners . . . . . . . . . . . . 6514 officer, making false certificate . . . . . . . . . . . 6530 officer, making false return of same . . . . . . . . . . 6874 officer, making unlawful arrest . . . . . . . . . . . . . 6513 officer, misconduct of, corporation . . . . . . . . . . . 7117 officer, neglect or violating duty by public administrator . . . . . . . . . . . . . . . . . . . . 6511 officer, neglecting to disperse rioters . . . . . . . . . 6956 officer, neglecting to prevent duel . . . . . . . . . . . 6715 officer of bank, insolvent, receiving deposit . . . . . . 7119 officer of savings bank overdrawing account . . . . . . . 7118 officer, omission of duty by . . . . . . . . . . . . . . 6534 officer, publishing false report of condition of corporation . . . . . . . . . . . . . . . . . . . . . 7121 officer, purchasing judgment . . . . . . . . . . . . . . 6435 officer, receiving excessive fees . . . . . . . . . . . . 6432 officer, reconfining person discharged . . . . . . . . . 6877 officer, refusing inspection of books of corporation . . 7122 officer, refusing to arrest persons charged with crime . 6510 officer, refusing to aid in making arrest . . . . . . . . 6517 officer, refusing to issue or obey a writ of habeas corpus . . . . . . . . . . . . . . . . . . . . 6876 officer, resisting . . . . . . . . . . . . . . . . . . . 6382 officer, resisting public . . . . . . . . . . . . . . . . 6515 officer, retaking goods from custody of . . . . . . . . . 6447 officer, solemnizing illegal marriage . . . . . . . . . . 6873 officer, who beats a person under color of authority . . 6516 oleomargarine . . . . . . . . . . . . . . . . . . . . . . 6917 omission to furnish child necessaries . . . . . . . . . . 6782 omissions to label drugs . . . . . . . . . . . . . . . . 6916 omissions of duties by officer . . . . . . . . . . . . . 6534 omissions of legal obligations . . . . . . . . . . . . . 6534 opening or publishing sealed letters . . . . . . . . . . 7166 opening telegraph messages . . . . . . . . . . . . . . . 7169 penalty, when none, punishment is fixed . . . . . . . . . 6535 poisoning animals . . . . . . . . . . . . . . . . . . . . 7152 postponing telegraphic messages . . . . . . . . . . . . . 7205 procuring warrant of arrest maliciously . . . . . . . . . 6533 putting dead animals in streets . . . . . . . . . . . . . 6914 racing on highways . . . . . . . . . . . . . . . . . . . 6928 railroads, engineer intoxicated . . . . . . . . . . . . . 6924 railroads, neglecting to ring bell . . . . . . . . . . . 6923 railroads, putting passenger cars in front of freight . . 6926 railroads, employes violating duties . . . . . . . . . . 6921 railroads, offenses upon and against . . . . . . . 7212-7214 remaining after being warned . . . . . . . . . . . . . . 6955 refusing to disperse on lawful command . . . . . . . . . 6960 removal of mortgaged property . . . . . . . . . . . . . . 7100 rescuing prisoner from custody . . . . . . . . . . . . . 6446 riot defined, etc. . . . . . . . . . . . . . . . . . . . 6950 riot, neglect of officer to disperse . . . . . . . . . . 6956 rout defined, etc. . . . . . . . . . . . . . . . . . . . 6952 search warrants maliciously procured . . . . . . . . . . 6533 selling coal, hay, etc., of short weight . . . . . . . . 7109 selling liquors at camp meetings . . . . . . . . . . . . 6821 selling opium for smoking . . . . . . . . . . . . . . . . 6831 selling tainted food . . . . . . . . . . . . . . . . . . 6919 sending letter, threatening to expose . . . . . . . . . . 7210 ship, setting adrift . . . . . . . . . . . . . . . . . . 7163 Sunday, disturbing religious meetings on . . . . . . . . 6820 taking or obstructing water in flume, etc. . . . . . . . 7137 taxes, refusing to give tax collector name of employe . . 6982 taxes, illegally delivering receipts for poll . . . . . . 6980 tearing down fences, etc. . . . . . . . . . . . . . . . . 7160 tearing down notices . . . . . . . . . . . . . . . . . . 7164 telegraph messages, altering . . . . . . . . . . . . . . 7168 telegraph information, using . . . . . . . . . . . . . . 7206 telegraph message, postponing out of turn . . . . . . . . 7205 telegraph message, clandestinely learning contents . . . 7207 telegraph message, forging . . . . . . . . . . . . . . . 7032 trade-marks, counterfeiting . . . . . . . . . . . . . . . 6862 trade-marks, selling goods with counterfeit . . . . . . . 6863 unlawful assembly . . . . . . . . . . . . . . . . . . . . 6953 using information fraudulently obtained from/telegraph messages . . . . . . . . . . . . . . . . . . . . . . . 7206 vagrancy . . . . . . . . . . . . . . . . . . . . . . 7208,7212 witness before legislature . . . . . . . . . . . . . . . 6414 witness preventing attendance of . . . . . . . . . . . . 6503

When the Constitution was adopted, did any of the language out of the 1887 Revised Statutes find its way into that document? Yes. All of art. 1, § 7, and some of art. 5, § 1:

Article 1, § 7. Right to trial by jury. — The right to trial by jury shall remain inviolate; but in civil actions, three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeanors five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court. Provided, that in cases of misdemeanor and in civil actions within the jurisdiction of any court inferior to the district court, whether such case or action be tried in such inferior court or in the district court, the jury shall consist of not more than six.

Article 5, § 1. Forms of actions abolished. — The distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the state as a party, against a person charged with a public offense, for the punishment of the same, shall be termed a criminal action.

Feigned issues are prohibited, and the fact at issue shall be tried by order of court before a jury. (Emphasis added.)

An important historical note is that after the people of Idaho ratified the Constitution, the Act of Congress which admitted Idaho to the Union (26 Stat.L. 215, ch. 656) by Section 21 thereof provided:

Territorial officers, continuance in office — Territorial laws, continuance in force. — Unitl the state officers are elected and qualified under the provisions of the constitution of said state, the officers of the territory of Idaho shall discharge the duties of their respective offices under the constitution of the state, in the manner and form as therein provided; and all laws in force, made by said territory, at the time of its admission into the union, shall be in force in said state, except as modified or changed by this act or by the constitution of the state.

Ten years passed after Idaho became a state during which time there was no change in the laws of 1887 which were in place when Idaho became a state. Conveniently, the next compilation of the Idaho statutes, the 1901 Annotated Codes, also provided in the index a list of the public offenses which had been and remained misdemeanors:

MISDEMEANORS, LIST OF.

Abstracts of title; engaged in making without filing bond . . . . . . . . . . . . . . . . . . . 5112 Adulterated candy, selling . . . . . . . . . . . . . 4745-4746 Adulteration of food, drugs, liquor, etc. . . . . . . . . 4747 Adulterating food, drugs, liquors, etc. . . . . . . . . . 4747 Altering telegraph messages . . . . . . . . . . . . . . . 5102 Animals, poisoning . . . . . . . . . . . . . . . . . . . 5081 Any clerk receiving fine or forfeiture on judgment, duty of . . . . . . . . . . . . . . .. . . . . 4788 Assaults defined . . . . . . . . . . . . . . . . . . . . 4896 Assaults by officers under cover of authority . . . . . . 4663 Assessor; listing property for less than cash value . . . 4794 Attempts to extort by verbal threats . . . . . . . . . . 4990 Attempts to vote not being qualified . . . . . . . . . . 4569 Attorney prosecuting; duty to prosecute assessor, when . . . . . . . . . . . . . . . . . . . . . 4795 Attorney prosecuting; failing to prosecute assessor, when . . . . . . . . . . . . . . . . . . . . . 4795 Attorney, defending certain cases . . . . . . 4670, 4671, 4672 misconduct by . . . . . . . . . . . . . . . . . . . 4672 Barratry, common . . . . . . . . . . . . . . . . . . . . 4668 defined . . . . . . . . . . . . . . . . . . . . . . . 4668 Bond by abstract; failing to file . . . . . . . . . . . . 5112 Buffalo or bison; person having in possession any part of 4841 Burning, etc., telegraph or telephone poles . . . . . . . 5037 Burning or injuring rafts . . . . . . . . . . . . . . . . 5085 Betting on elections . . . . . . . . . . . . . . . . . . 4578 Bridge or ferry, maintaining without a license . . . . . 4802 crossing without paying tolls . . . . . . . . . . . . 5031 Broker, commission merchant or consignee making false statements . . . . . . . . . . . . . . . . . 4997 Burglarious tools having . . . . . . . . . . . . . . . . 4936 Buying appointments to office . . . . . . . . . . . . . . 4599 Buying demands in suit, by attorney . . . . . . . . . . . 4671 Buying, taking or accepting opium for smoking . . . . . . 4709 Canal or ditch; damaging, etc. . . . . . . . . . . . . . 5044 Candidate voted for; divulging name of elector voting for, penalty . . . . . . . . . . . . . . . . . . . 4591 Caribou, moose; killing, ensnaring, etc. . . . . . . 4815-4821 Cash value; assessor listing property for less . . . . . 4794 Catching fish; except for breeding between certain dates 4836 Catching or killing certain fish, etc. . . . . . . . . . 4835 Certificate of health of sheep; failure to produce . . . . . . . . . . . . . . . . . . . 5075 Chapter XV of the Political Code, relating to vinegar, violation of . . . . . . . . . . . . 4744 Chapter XV of the Political Code, relaring to dental law . . . . . . . . . . . . . . . . . 4741 Chapter CCXXI of the Penal Code, relating to estrays, violation of . . . . . . . . . . . . 5061 Chapter CVI of the Civil Code, relating to irrigation laws, violation of . . . . . . . . 5026 Changing telegraph messages . . . . . . . . . . . . . . . 5102 Child, omission to furnish necessaries to . . . . . . . . 4692 Cigarettes; selling or giving away to minors . . . . . . 4768 Clandestinely learning contents of message . . . . . . . 5100 Controller or owner of sheep, failure to dip; neglecting or refusing to file statement . . . . . . . . . . . . . . . . . . . . . . 5025 Compounding offenses . . . . . . . . . . . . . . . . . . 4665 Consignees, etc., making false statements . . . . . . . . 4997 Counterfeiting trade marks, etc. . . . . . . . . . . . . 4950 Criminal contempts . . . . . . . . . . . . . . . . . . . 4676 Criminal conspiracy . . . . . . . . . . . . . . . . . . . 4686 Crossing inspection line with sheep, duty of deputy inspector . . . . . . . . . . . . . . . . 5068 Cutting trees . . . . . . . . . . . . . . . . . . . . . . 5087 Dams, fixtures, piers, willfully injuring . . . . . . . . 5047 Damaging ditch, etc. . . . . . . . . . . . . . . . . . . 5044 Dead animals, putting in streets and rivers, etc. . . . . 4730 Deadly weapons, rudely exhibiting . . . . . . . . . . . . 4780 having . . . . . . . . . . . . . . . . . . . . . . . . 4921 Defacing or removing landmarks . . . . . . . . . . . . . 5089 Depositing unlawful ballots . . . . . . . . . . . . . . . 4592 Deputy inspector, permitting sheep to travel without being examined . . . . . . . . . . . . . . . . . 5071 Destroying evidence . . . . . . . . . . . . . . . . . . . 4653 Director of corporation, misconduct of . . . . . . . . . 5013 Diseased sheep; driving into state in violation of governor's proclamation . . . . . . . . . . . . . . . 5063 Disorderly house, keeping . . . . . . . . . . . . . . . . 4713 Disturbing quietude of neighborhood . . . . . . . . . . . 4713 Disclosing contents of telegraphic message . . . . . . . 5101 Disturbing religious meetings . . . . . . . . . . . . . . 4705 Disturbing political meetings . . . . . . . . . . . . . . 5157 Disturbing peace . . . . . . . . . . . . . . . . . . . . 4778 Ditch or canal; damaging, etc. . . . . . . . . . . . . . 5044 Diverting water from ditch or channel . . . . . . . . . . 5043 Divulging name by judge of candidate voted for by elector . . . . . . . . . . . . . . . . . . 4591 Druggists; violating provisions, laws of this state, relating to liquor . . . . . . . . . . . . . . . . . . . 4715 Election day, selling liquor on, prohibited . . . . . . . 4581 Elector divulging name of candidate voted for . . . . . 4591 Electric light poles; cutting down . . . . . . . . . . . 5037 Electors, attempt to vote not being qualified . . . . . . 4569 Elections, betting on . . . . . . . . . . . . . . . . . . 4578 disturbing . . . . . . . . . . . . . . . . . . . . . . 4577 intimidating, corrupting, etc., electors . . . . . . . 4576 officer, judge or clerk of, unfolding or marking ticket . . . . . . . . . . . . . . . . . . . . . 4572 procuring illegal voting . . . . . . . . . . . . . . . 4570 refusal by voter to be sworn . . . . . . . . . . . . . 4567 refusal to answer questions by officer of . . . . . . 4567 Elk; killing, wounding, ensnaring, etc. . . . . . . . . . 4817 Engaged in making abstract of title without first filing bond . . . . . . . . . . . . . . . . 5112 Escape from prison other than state . . . . . . . . . . . 4623 Evidence, destroying . . . . . . . . . . . . . . . . . . 4653 Exhibiting deformed person for hire . . . . . . . . . . . 4985 Exposure, indecent, person, picture, etc. . . . . . . . . 4718 of persons having contagious diseases . . . . . . . . 4732 threatening by letter . . . . . . . . . . . . . . . . 5105 Failing to dip sheep . . . . . . . . . . . . . . . . . . 5078 Falsely claiming to hold license or certificate to practice dentistry . . . . . . . . . . . . 4742 Fighting duel, posting for not . . . . . . . . . . . . . 4891 Fire arms; Indians having possession of off reservation . . . . . . . . . . . . . . . . . . . 4853 Fish; catching, except for breeding between certain dates . . . . . . . . . . . . . . . . . . 4836 Fish park; private, trespassing upon . . . . . . . . . . 4843 Forcible entry, and detainer . . . . . . . . . . . . . . 4783 returning to retake . . . . . . . . . . . . . . . . . 4784 Frauds, by debtor concealing property . . . . . . . . . . 4666 by defendant in same . . . . . . . . . . . . . . . . . 4667 by personation . . . . . . . . . . . . . . . . . . . . 4991 in conveyancing . . . . . . . . . . . . . . . . . . . 4993 in obtaining money, false pretense . . . . . . . . . . 4994 in weights and measures . . . . . . . . . . . . . . . 5005 in stamping casks, etc. . . . . . . . . . . . . . . . 5006 in stock subscriptions . . . . . . . . . . . . . . . . 5010 in using name in prospectus . . . . . . . . . . . . . 5012 Gambling, cheating, etc. . . . . . . . . . . . . . . . . 4846 Getting stray sheep into herd while driving; duty of person driving . . . . . . . . . . . . . 5077 Glanders, neglecting to kill animal having . . . . . . . 4734 Grand jurors; acting after challenge allowed . . . . . . 4674 disclosing transactions of . . . . . . . . . . . . . . 4679 Grand juror disclosing fact of indictment found . . . . . 4678 Gunpowder, keeping unlawfully . . . . . . . . . . . . . . 4752 Herder sheep; refusing to be sworn by deputy inspector as to condition of sheep . . . . . . . . . . . . . . . . . . . . . . . . 5074 Horticultural inspector; neglect or refusal to comply with orders of . . . . . . . . . . . . 4766 House disorderly; keeping, retailing liquors . . . . . . 4713 Ill-fame house of; admission of minors, etc. . . . . . . 4691 Imprisonment, false . . . . . . . . . . . . . . . . . . . 4894 Incompetent persons, issuing license to . . . . . . . . . 4723 Injury, telegraph pole, etc. . . . . . . . . . . . . . . 5037 Indians having possession fire arms when off reservation 4853 Injuring, insulator . . . . . . . . . . . . . . . . . . . 5037 gas and water pipes . . . . . . . . . . . . . . . . . 5095 levees, etc. . . . . . . . . . . . . . . . . . . . . . 5048 mile stones and guide boards . . . . . . . . . . . . . 5030 standing crops . . . . . . . . . . . . . . . . . . . . 5088 telegraph lines . . . . . . . . . . . . . . . . . . . 5038 toll houses, etc. . . . . . . . . . . . . . . . . . . 5029 works of art . . . . . . . . . . . . . . . . . . . . . 5094 Inspection lines; driving band or herd of sheep across . . . . . . . . . . . . . . . . . . . . . 5066 Inspector deputy; permitting sheep to travel without being inspected . . . . . . . . . . . . . 5071 Inspectur horticultural; neglect or refusal to comply with orders of . . . . . . . . . . . . . . . . 4766 Intoxication, malpractice by physician from . . . . . . . 4915 engineer . . . . . . . . . . . . . . . . . . . . . . . 4754 Issuing license to incompetent person . . . . . . . . . . 4723 Judge divulging name of candidate for whom elector voted . . . . . . . . . . . . . . . . . . . 4591 Keeping disorderly house . . . . . . . . . . . . . . . . 4713 Keeping pest house within certain limits . . . . . . . . 4728 Killing, wounding, ensnaring, trapping or destroying elk . . . . . . . . . . . . . . . . . . . . 4817 or maiming animals . . . . . . . . . . . . . . . . . . 5082 Label genuine, displaying without authority . . . . . . . 5000 Larceny, petit . . . . . . . . . . . . . . . . . . . . . 4958 of gas . . . . . . . . . . . . . . . . . . . . . . . . 5095 of water . . . . . . . . . . . . . . . . . . . . . . . 4968 Legislature, witness refusing to testify before . . . . . 4610 Libel, defined . . . . . . . . . . . . . . . . . . . . . 4902 threats to publish . . . . . . . . . . . . . . . . . . 4910 License, maintaining bridge or ferry without . . . . . . 4802 doing business without . . . . . . . . . . . . . . . . 4802 auctioneering without . . . . . . . . . . . . . . . . 4802 Lines inspection; driving band or herd of sheep across . . . . . . . . . . . . . . . . . . 5066 Listing property by assessor for less than cash value . . . . . . . . . . . . . . . . . . 4794 License to marry, issuing to incompetent person . . . . . 4723 Liquor, selling to Indians . . . . . . . . . . . . . . . 4717 Malicious injuries to freehold . . . . . . . . . . . . . 5087 Malicous mischief . . . . . . . . . . . . . . . . . . . . 5079 Minors, selling or giving away cigarettes to . . . . . . 4767 Minors, selling or giving away spirituous liquors to . . 4716 Moose, caribou, killing, ensnaring, etc. . . . . . . 4815-4821 Misdemeanor, how punished . . . . . . . . . . . . . . . . 5117 Name or seal; person or association using without authority . . . . . . . . . . . . . . . . . 5001 Neighborhood, disturbing quietude of . . . . . . . . . . 4713 Neglecting willfully, or refusing to deliver water, etc., from irrigation canal . . . . . . . . . . . . . . . . . . . . . . . . 5040 Neglect to comply with order of horticultural inspector . . . . . . . . . . . . . . . . . 4766 to make return of marriage, etc., penalty . . . . . . 4722 Net or seine, catching fish with . . . . . . . . . . . . 4835 Nuisance, maintaining . . . . . . . . . . . . . . . . . . 4764 Oath, refusing to take, when offering to vote . . . . . . 4567 Obstructing overflow gauge, to increase flow of water . . . . . . . . . . . . . . . . . . . . . 5042 to impede flow of water . . . . . . . . . . . . . . . 5041 Officer, concealing person such writ . . . . . . . . . . 4920 cruel treatment of lunatics . . . . . . . . . . . . . 4917 delay in presenting arrest to magistrate . . . . . . . 4659 disclosing evidence before grand jury . . . . . . . . 4679 disclosing fact of indictment found . . . . . . . . . 4678 exercising duties of office wrongfully . . . . . . . . 4601 suffering escape of convict . . . . . . . . . . . . . 4624 extortion by execution . . . . . . . . . . . . . . . . 4596 extortion in fees . . . . . . . . . . . . . . . . . . 4987 failure to pay over fines, etc. . . . . . . . . . . . 4788 false representation to assessor . . . . . . . . . . . 4789 inhumanity to prisoners . . . . . . . . . . . . . . . 4661 making false certificate . . . . . . . . . . . . . . . 4677 making false return of . . . . . . . . . . . . . . . . 4631 making unlawful arrest . . . . . . . . . . . . . . . . 4660 misconduct of directors . . . . . . . . . . . . . . . 5013 neglect or violating duty by public administrator . . . . . . . . . . . . . . . . . . . . 4658 neglecting to disperse rioters . . . . . . . . . . . . 4775 neglecting to prevent duel . . . . . . . . . . . . . . 4802 of savings bank, overdrawing account . . . . . . . . . 5014 of corporation falsifying books . . . . . . . . . . . 5016 omission of duty by . . . . . . . . . . . . . . . . . 4681 publishing false report of condition of corporation . 5017 purchasing judgment . . . . . . . . . . . . . . . . . 4617 receiving excessive fees . . . . . . . . . . . . . . . 4614 reconfining person discharged . . . . . . . . . . . . 4910 refusing inspection of books of corporation . . . . . 5018 refusing to arrest person charged with crime . . . . . 4657 refusing to aid in making arrest . . . . . . . . . . . 4664 refusing to issue or obey a writ of habeas corpus . . 4918 resisting . . . . . . . . . . . . . . . . . . . . . . 4595 resisting public . . . . . . . . . . . . . . . . . . . 4662 retaking goods from custody of . . . . . . . . . . . . 4620 solemnizing illegal marriage . . . . . . . . . . . . . 4724 who beats a person under color of authority . . . . . 4663 Omissions, to furnish child with necessaries . . . . . . 4692 to label drugs, etc. . . . . . . . . . . . . . . . . . 4736 of duties by officer . . . . . . . . . . . . . . . . . 4681 of legal obligations . . . . . . . . . . . . . . . . . 4681 Owner or controller of sheep, failing to dip . . . . . . 5078 Overflow gauge, constructing to increase flow of water . . . . . . . . . . . . . . . . . . . . 5042 Order of horticultural inspector, refusal or neglect to comply with . . . . . . . . . . . . . . . . 4766 Officers to prosecute for gambling, etc. . . . . . . . . 4851 Park private for fish or game, trespassing upon . . . . . 4843 Penalty for judge divulging name of candidate for whom elector voted . . . . . . . . . . . . . . . . 4591 Penalty, when none, punishment is fixed . . . . . . . . . 4682 Person or transportation company, etc., unloading sheep to be moved upon range, being first inspected . . . . . . . . . . . . . 5067 Person found in house or place kept as a resort for smoking opium . . . . . . . . . . . . . . . 4710 Permitting certain games to be conducted, where . . . . . 4845 Poisoning animals . . . . . . . . . . . . . . . . . . . . 5081 Postponing telegraphic messages . . . . . . . . . . . . . 5098 Private park for fish or game, trespassing upon . . . . . 4843 Procuring warrant of arrest maliciously . . . . . . . . . 4680 Provisions of sections 4828 and 4829, relating to fish and game, violation of . . . . . . . . . . . . . 4831 Proclamation, persons shipping sheep into state after . . 5065 Property listing for less than its cash value . . . . . . 4794 Prosecuting attorney, failure to perform duty . . . . . . 4851 failing to prosecute assessor, when . . . . . . . . . 4795 duty to prosecute assessor, when . . . . . . . . . . . 4795 Proclamation of governor concerning diseased sheep, violation of penalty . . . . . . . . . 5063 Putting dead animals in streets . . . . . . . . . . . . . 4730 Quietude of neighborhood, disturbing . . . . . . . . . . 4713 Racing on highways . . . . . . . . . . . . . . . . . . . 4757 Railroad engineers intoxicated . . . . . . . . . . . . . 4754 Railroads, neglecting to ring bell, etc. . . . . . . . . 4753 putting passenger cars in front of freight . . . . . . 4755 employees violating duties . . . . . . . . . . . . . . 4756 Remaining after being warned . . . . . . . . . . . . . . 4774 Refusing to disperse on lawful command . . . . . . . . . 4779 Refusing to comply with order of horticultural inspector . . . . . . . . . . . . . . . 4766 Rescuing prisoner from custody . . . . . . . . . . . . . 4619 Return of marriage, neglect to make return, penalty . . . 4722 Retaining possession and disposing of state arms . . . . 4805 Riot defined, etc. . . . . . . . . . . . . . . . . . 4769-4770 Riot, neglect of officers to disperse . . . . . . . . . . 4775 Rout defined, etc. . . . . . . . . . . . . . . . . . . . 4771 Search warrants maliciously procured . . . . . . . . . . 4680 Sections 628, 630 or 640 of Political Code, Notation of . . . . . . . . . . . . . . . . . . . . . 4860 Seine or net, catching fish with . . . . . . . . . . . . 4835 Selling spirituous liquor to minors . . . . . . . . . . . 4716 to Indians . . . . . . . . . . . . . . . . . . . . . . 4717 adulterated candy . . . . . . . . . . . . . . . . . . 4755 coal, hay, etc., of short weight . . . . . . . . . . . 5007 fire arms, etc., to Indians . . . . . . . . . . . . . 5764 liquor to a minor . . . . . . . . . . . . . . . . . . 4716 liquor at camp meetings . . . . . . . . . . . . . . . 4706 opium for smoking . . . . . . . . . . . . . . . . . . 4708 tainted food . . . . . . . . . . . . . . . . . . . . . 4748 Sending letter, threatening to expose . . . . . . . . . . 5105 Setting vessel adrift . . . . . . . . . . . . . . . . . . 5085 Sheriff, receiving fine or forfeiture arising from a judgment, duty of . . . . . . . . . . . 4788 Sheep, allowing to be loaded on ferry boat, etc., without production of certificate . . . . 5075 shipping into state after proclamation of governor . . 5265 infected with scab for fifteen days without person in control reporting the fact to deputy sheep inspector . . . . . . . . . . 5072 herder refusing to be sworn by deputy sheep inspector as to condition of sheep . . . . . . . . . . 5074 diseased, driving into state, proclamation of governor, violation of, penalty . . . . . . . . . . 5063 crossing inspection lines, duty of inspector . . . . . 5068 Solemnizing marriage, making false return, penalty . . . 4631 Stray sheep getting into band, when duty of person in charge . . . . . . . . . . . . . . . . . 5077 Statement; corporation neglecting or refusing to file statement . . . . . . . . . . . . . . 5025 Sunday, disturbing religious meetings on . . . . . . . . 4705 Surgery and medicine; practicing without a license . . . 4739 Taking or obstructing water in flume, etc. . . . . . . . 5039 Taxes, refusing to give tax collector name of employee . . . . . . . . . . . . . . . . . . . 4792 illegally delivering receipts for poll . . . . . . . . 4790 Tearing down, fences, etc. . . . . . . . . . . . . . . . 5087 notices . . . . . . . . . . . . . . . . . . . . . . . 5091 Telegraph messages, altering . . . . . . . . . . . . . . 5102 Telegraph information, using . . . . . . . . . . . . . . 5099 Telegraph message, postponing out of turn . . . . . . . . 5098 clandestinely learning contents . . . . . . . . . . . 5100 Telegraph message, forging . . . . . . . . . . . . . . . 4941 Title, abstract of, engaging in making without filing bond . . . . . . . . . . . . . . . . . 5112 To make return of marriage, neglect, penalty . . . . . . 4722 Trade marks, counterfeiting . . . . . . . . . . . . . . . 4950 selling goods with counterfeit . . . . . . . . . . . . 4950 defacing on logs, etc. . . . . . . . . . . . . . . . . 5002 Transportation company, etc., unloading sheep to be driven upon range, etc., without certificate of health from inspector . . . . . . . . . . . . . . . . . . . . 5068 Unlawful assembly . . . . . . . . . . . . . . . . . . . . 4772 Using information fraudulently obtained from telegraphic message . . . . . . . . . . . . . . . 5099 Vagrancy . . . . . . . . . . . . . . . . . . . . . . . . 4852 Value cash; assessor listing property for less . . . . . Violating provisions of Chapter CCXVI of the Penal Code, relating to vinegar . . . . . . . . . 4744 Violation of provisions of Secs. 704 and 705 of Political Code relating to sheep . . . . . . . . . 5068 Violating sections 4822-4823-4824, relating to game . . . 4825 Violation, of provisions of Secs. 4828-4829, relating to game . . . . . . . . . . . . . . . . . . 4831 of section relating to fine and forfeitures . . . . . 4788 of Chap. XV, of the Political Code, relating to dental laws . . . . . . . . . . . . . . . 4741 provisions of Secs. 638, 639 or 640 of Political Code 4860 Water way; obstructing overflow gauge of . . . . . . . . 5041 Water, refusing willfully to deliver water, etc., from irrigation canal . . . . . . . . . . . . . . . . 5040 diverting from ditch or channel . . . . . . . . . . . 5043 Willfully neglecting or refusing to deliver water, etc., from irrigaton canal . . . . . . . . . . . . . . 5040 Witness, neglecting to appear as a witness . . . . . . . 4849 before legislature . . . . . . . . . . . . . . . . . . 4610 preventing attendance of . . . . . . . . . . . . . . . 4654

Although a few new misdemeanor public offenses appear to have been created, a comparison of the 1887 list of misdemeanors with the 1901 list shows no change from the statutes of 1887. For instance, R.S. 1887 § 7133 in 1901 is codified as § 5032, and continues to criminalize obstructing a public road. Section 5033 of the 1901 Code continue 1887 R.S. § 5033, criminalizing the flooding of public highways, roads or streets. Injury to a public highway, however, under § 5028 of the 1901 Code, continues to be a felony or indictable misdemeanor as under 1877 R.S. § 5028. Racing on public highways, a misdemeanor under 1877 R.S. § 6928, continues to be a misdemeanor public offense under § 4757 of the 1901 Code, etc., ad infinitum. To which should be added at this highly appropriate time, and which might have gained honorable mention in connection with Associated Taxpayers of Idaho, Inc. v. Cenarrusa, 111 Idaho 502, 725 P.2d 526 (1986) (the lottery initiative issue wherein mention was made that betting on horses was skill, not chance). Section 4578 of the 1901 Code carried forward 1887 R.S. § 6366, making it a misdemeanor public offense to bet, or offer to bet or wager upon the success of failure of any particular candidate.

In 1913 the legislature appears to have for the first time addressed the presence of automobiles in Idaho. 1913 Idaho Sess. Laws, ch. 179, pp. 558-573. A state Highway Commission was created, licenses and registrations were required, and apropos our concern today a Purpose of the Act was "PRESCRIBING RULES AND REGULATIONS FOR OPERATION AND RUNNING MOTOR VEHICLES ON THE PUBLIC HIGHWAYS OF THE STATE."

Sec. 26. Every motor vehicle operated or driven upon the public highways of this State shall be provided with adequate brakes, in good working order and sufficient to control such vehicle at all times when the same is in use, and an adequate horn or other device for signaling sufficient under all conditions to give timely warning of the approach of the motor vehicle, and shall, during the period from one hour after sunset to one hour before sunrise, display at least two lighted lamps on the front, and one on the rear of such vehicle, which shall also display a red light visible from the rear; the white light of such rear lamp shall shine upon and illuminate the number plate carried on the rear of such vehicle so that the said number will be clearly visible at a distance of one hundred feet. The light of the front lamps shall be visible at least two hundred feet in the direction in which the motor vehicle is proceeding. Every person operating or driving a motor vehicle on the public highways of this State shall also, when approaching a cross road outside of the limits of a city or incorporated village, or another intersecting highway or street or curve or corner in a highway or street, where the operator's view is obstructed, slow down the speed of the same, and shall sound his horn or other device for signaling in such a manner as to give notice and warning of his approach; Provided, That a motor cycle shall be considered to have complied with the provisions of this Section by carrying one front lamp visible for a distance of one hundred feet.

Sec. 27. Whenever a person operating a motor vehicle shall meet on the public highway any other person riding or driving a horse or horses, or other draft animals or any other vehicle, the person so operating such motor vehicle shall reasonably turn the same to the right so as to give half of the traveled road, if practical, and a fair and equal opportunity to pass, to the other, without interference; or, if they are traveling in the same direction, the person overtaking shall pass on the left side of the person so overtaken, and the person overtaken shall give the other a convenient opportunity to pass, if it can be done without endangering his own vehicle, person, horses, or other draft animals; Provided, That on canyon roads or other roads bordering on any precipice, stream or river, and upon dugways, such person operating such motor vehicle shall be required to take the side nearest to any such precipice, stream or river, and the other side of the dugway. Any person operating any motor vehicle upon any public highway shall give warning, either by blowing a horn or ringing a bell, within fifty and not to exceed one hundred yards distant from any person riding or driving any horse or horses, or any vehicles drawn by horses or other draft animals, which the said motor vehicle may meet or overtake, and shall also give such warning upon approaching any sharp turn, curve, or dugway, or other dangerous place upon such highway; and upon approaching such sharp turn, curve, dugway, or other dangerous place upon such highway, shall reduce the speed of such motor vehicle, and shall have the same under perfect control.

Sec. 28. Every person operating a motor vehicle on the public highways of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; Provided, That a rate of speed in excess of thirty miles an hour for not less than one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful or prudent.

Sec. 29. The local authorities of counties, cities and incorporated villages in this State shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner of a motor vehicle or any dealer or manufacturer to which this Act shall be applicable, any tax, any license or permit for the free use of the public highways or streets or alleys of such county, city or incorporated village, or prohibiting or excluding any such owner, manufacturer, or dealer from the free use of such highways, streets and alleys, or excluding or prohibiting any motor vehicle registered in compliance with this Act from the free use of such highways, streets and alleys. Provided, That the powers given by general statutes to local authorities in cities and villages to enact general ordinances applicable equally and generally to all vehicles and uses of streets to bring about the orderly passage of vehicles upon certain streets in such cities and villages where the traffic is heavy and continuous, and the powers given to cities and villages to regulate vehicles offered to the public for hire, or processions, assemblages or parades in the streets or public places, shall remain in full force and effect, and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect; nor shall this Act be construed so as to prevent cities and incorporated villages of this State from enacting and enforcing general ordinances prescribing additional rules and regulations as to the speed or manner of driving or operating motor vehicles on any of the streets of such cities or villages, and prescribing other and additional rules and regulations pertaining to signals to be given by drivers or operators of motor vehicles, the carrying of lights on such motor vehicles, the turning of motor vehicles in streets, and rules and regulations of motor vehicles in passing other vehicles and pedestrians.

Sec. 30. No person shall operate or run any motor vehicle upon any of the public highways of this State while such person is under the influence of intoxicating liquor.

Sec. 31. Any person violating any of the provisions of this Act shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding Three Hundred ($300.00) Dollars, or by both such fine and imprisonment.

Even as late as 1908 when the Idaho Revised Codes were enacted and published, the 1887 R.S., §§ 7480-7495, were carried forward without change in section number or content. See 1908 Revised Codes, Title 3, ch. 1, pp. 704-707. En route procedure was changed so that criminal prosecutions could also be commenced by complaint and information, rather than indictments, and a preliminary hearing became a requirement in the usual case on a felony charge.

Section 6309 of the 1908 R.C. continued to identify a crime as public offense, just as had R.S. 1887 § 6309: "A crime or public offense is an act committed or omitted in violation of a law. . . ." Section 6310 of both acts remained the same: "Crimes are divided into: 1. Felonies, and 2. Misdemeanors."

Enough documentation should have been produced at this point to illustrate that in a period extending almost a century, Idaho, both as a territory and then as a state, both in legislation and in the Constitution itself, has recognized that punishable public offenses are and have been misdemeanors and felonies, and that as to misdemeanors a defendant is entitled to a jury trial unless he waives that constitutional guarantee. Those who would say otherwise are guilty of supposition and wishful thinking.

In the year 1982 the people of Idaho ratified a number of constitutional amendments proposed by the legislature. The instant legislation now under challenge should have been presented to the people at that time as a proposed constitutional amendment. There are many believers in the constitutional protections that might not have voted for such an amendment. A fair and square presentation was to have been preferred.

But, I surmise that there were indeed many legislators who would not have voted for the proposition, and I do not doubt that there were a good many of those legislators who voted for the Traffic Infractions Act without knowing that it was not legislation drafted by the legislature, or at its instance. Which is not to say that legislative leadership was not well aware of the source of the 1982 Traffic Infractions Act.

APPENDIX A

June 12, 1981

Section 49-3401

Section 49-3402

Section 49-3403

Section 49-3404

Section 49-3405

Section 49-3406, Amount of Penalties

New Provision

Section 49-3407, Appeals Procedures

Section 49-3408, Infraction Citation Forms

Section 49-3409

Sections 49-3410 and 3411

Section 49-3412

Section 18-109

Section 49-602

Section 49-739

Section 49-801

Section 49-837A, 49-848, 49-909, 49-2614, 49-3227, 49-320

Section 49-328

Section 49-330

Section 49-335, Unlawful Use of License

Section 49-342

New Section

Additional Changes

Respectfully submitted,

Carl F. Bianchi

Committee Reporter

APPENDIX B

MINUTES OF TRAFFIC INFRACTIONS ACT COMMITTEE MEETING

August 14, 1981

Elkhorn at Sun Valley

APPENDIX C

March 8, 1982

THIS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL AND IS SUBMITTED SOLELY FOR YOUR LEGAL GUIDANCE.