Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1889-04-12


claims, the remedy under the act
fails. The objection was taken by
the respondent before the answer
was fled. His exceptions to the rul-
ing we're then and there settled by
the Judge, and are incorporated as a
part of the statement Of the case on
appeal. The respondent still stands
upon such objection, and exceptions,
in this Court. 1t is true that the
Court upon the hearing found for the
defendant, and the defendant does
not appeal. Yet it is not easy to see,
if the objection was valid when it
was taker, how his failure to appeal
from finding in his favor, where he
has all along, and on the appeal, in.
sisted on his objection, should be
construed as waiver of his objec-
ton. If, indeed, in any case, it
might be so waived, it cannot be so
in this case; for the objection goes to
the jurisdiction of the Court to the
validity of the statute, and not merely
to an irregularty. That is not sub
ject to such waiver. If that part of
the act is void, the objection may be
made at any time, even on appeal.
The ground on which it is urged that
this provision is unconstitutional are
list, that it denies the right of trial
by jury; I'd, that it creates a tribunal
unknown and unauthorized by the
laws. Section 1868 of the Revised
Statutes of the United States, as
amended April Z, 1874, prescribing
and limiting the powers of Territorial
legislatures, providing that "no par
ty shall be deprived of the right of
trial by jury in cases cognizable by
the common law"
Again, constitution of the United
States, Art. 3, Sec. 2, "The trial of
all crimes, except in cases of impeach-
ment, shall! be by jury"
Again, Ibid, Art. 8, amendments,
" No person shall be deprived of
life, liberty or property, without due
process of law" And again, ID,
amendment Z, "In suits at common
law, where the value in controversy
shall exceed twenty dollars, the right
OF trial by jury be preserved"
There seems to have been in dis
position in some States under the
Grown constitutions to evade these
provisions, whether of the United
States or State constitutions or such
OF them as clearly affect the case.
And some courts have gone so far as
to deny squarely, that proceedings of
this nature, are Of legal, instead of
equitable cognizance. A Missouri
case, State OK. rel. Norton VS.. Lup.
ton, 81, Am. Reports 1853, SO holds;
but this case is met by the New York
Court of Appeals in People VS..
A. q S. r. Co. ct al, 81 N. Y. l61. in
which case the Court holds that an
action in the nature of a quo warranto.
brought by the Attorney General
IN the name of the people of the
State, to try the title to a corporate
office, to which there are several
claimants, is one of legal, and not
equitable cognizance; that the issues
therein are strictly legal ones; and
that the trial of such by a jury, is the
constitutional right of the parties.
The constitutional guaranty of the
right of trial by jury, in that
State, goes no further than the pro.
visions of the Federal Cons :itution.
and the act of Congress cited, Sec.
1868, as amended, made especially to
apply to our Territorial Legislature.
Nor can the Territorial Legislature
pass any law in contravention of the
constitution or the laws of the United
States. u. S. Rev. Stats, Sec. 1851.
In other cases, as in the State of Hi
nois, the Statute itself only confers
supervisory power over the regu-
larity of the election; and does not at
all apply to much of the ground COW
cred by the Statute of Idaho.
A Louisiana Court, in Joseph vs..
bldwell, 70 Am. Rep. 102, holds, that
the Federal Constitution IN that res
pect can have no application to the
State Courts, Perhaps, as Louisiana
S sovereign State, that claim may
be sustained. Other cases cited by
The appellant hold the same, but we
ire not called upon to discuss that
question, Idaho is not State, but is
Territory of the Unitnd States; and
n all things, subject to the constitu-