Opinion
No. 5732.
October 29, 1931.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.
Criminal proceeding under Chapter 198, 1925 Session Laws. From an order sustaining defendant's demurrer and granting a motion to quash, the state appeals. Affirmed.
Fred J. Babcock, Attorney-General, Z. Reed Millar, Assistant Attorney General, and Carl A. Burke, Prosecuting Attorney, Ada County, for Appellant.
1925 Sess. Laws, chap. 198, is almost identical with secs. 11 to 18, chap. 273, of the General Laws of Massachusetts of 1926, and while it is criminal in nature it is intended to compel the putative father of an illegitimate child to reasonably support it. ( Commonwealth v. Mekelburg, 235 Mass. 383, 126 N.E. 790; Commonwealth v. Dornes, 239 Mass. 592, 132 N.E. 363; Commonwealth v. Baxter, 267 Mass. 591, 166 N.E. 742.)
Probate and justice courts have jurisdiction of all misdemeanors punishable by not more than $300 fine, or not more than six months' imprisonment, or by both such fine and imprisonment, and a preliminary examination is not necessary in these cases. (C. S., sec. 6474; Const., art. 1, sec. 8; State v. Raaf, 16 Idaho 411, 101 P. 747; State v. West, 20 Idaho 387, 118 P. 773; State v. Stafford, 26 Idaho 381, 143 Pac. 528.)
C.H. Edwards, for Respondent.
Chap. 198, Sess. Laws 1925, is unconstitutional in that it violates Const., art. 1, sec. 8, in that no preliminary examination was provided for. (Const., art. 8, sec. 8.)
Chap. 198, Sess. Laws 1925, is void in that it violates Const., art. 3, sec. 16, in that the act embraces two different subjects and is really two different acts. (Const., art. 3, sec. 16.)
Defendant demurred to, and moved to quash, a criminal complaint filed against him in the district court under chap. 198, 1925 Sess. Laws, p. 368, on the ground, among others, that because sec. 2 of the act requires that all actions or proceedings thereunder, though designated misdemeanors, "shall" be in the district court, the act violates art. 1, sec. 8, of the Constitution.
This provision of the Constitution requires a preliminary examination, or action by a grand jury, before prosecution in the district court, of all criminal causes, except, so far as material here, "cases cognizable by probate courts or by justices of the peace. . . . ."
"Cognizable" in law is defined as "capable of being tried or examined before a designated tribunal; as, an offense cognizable before a justice." (Funk Wagnalls New Standard Dictionary.) By the terms of the act herein questioned, actions and proceedings under it are mandatorily confined to the district court, and therefore though designated misdemeanors, are not cognizable by justices of the peace and probate courts. Actions under the act in question, not being cognizable by a justice of the peace or probate court, would then require a preliminary examination. ( State v. West, 20 Idaho 387, 118 Pac. 773), but the statute says all "actions or proceedings" shall be in the district court.
"Actions" or "proceedings" generally are not confined to the trial. (1 C. J., p. 943.) Hence, a preliminary examination is not authorized, so there is no method of proceeding in accordance with the Constitution.
The context of the act precludes us from (eliminating sec. 2 therefrom. ( Epperson v. Howell, 28 Idaho 338, 154 P. 621.) Considering "shall" as permissive, allowing trials before justices of the peace or probate courts, would make the use of the word "shall" meaningless, since the district courts already had, and have, concurrent jurisdiction with justices of the peace and probate courts, of misdemeanors. ( Fox v. Flynn, 27 Idaho 580, 150 P. 44.)
Judgment sustaining the demurrer and granting the motion to quash affirmed.
Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.