to the extent of $300, or of any sum approaching it, had not Congress in express language authorized it. Neither do we think that the legislature could do so in criminal matters without some such express authority by Congress; yet it is claimed in the case before us that the legislature can not only confer such jurisdiction in criminal matters, but can go further, and add imprisonment for a period of six months. We cannot think that Congress ever intended to allow such legislation by the territorial legislature: People v. Maron, 1 Idaho, 330.

It is, however, claimed that admitting the justice had no jurisdiction, yet that the writ of prohibition is not the proper process to reach the defect, as there was a remedy in the ordinary course of law, by appeal, and that this remedy was plain, speedy, and adequate. An appeal could be resorted to only after final judgment. It could not have stopped the proceeding in the justice's court. It could not have prevented the justice from forcing the petitioner into an unathorized and illegal trial, nor from compelling him, if convicted, to take an appeal and give bond in at least double the amount of the fine, with at least two sureties, or, in default thereof, to go to jail, and yet, upon the appeal, the whole proceeding would have to be dismissed on the ground that the justice had no jurisdiction to hear the case, and, as a consequence, the appellate court could have none. There could be no trial of the merits in the district court because no such trial was authorized in the court below: Southern Pac. R. Co. v. Superior Court, 59 Cal., 471; Peacock v. Leonard, 8 Nev., 84; Stephens v. Boswell, 2 J. J. Marsh, 29; Brondberg v. Babbott, 14 Neb., 519; S. C. 16 N. W. Rep., 845; Wolcott v. Territory, 1 Wyo., 67; Cooban v. Bryant, 36 Wis., 605; Fell v. Felt, 19 Wis., 199; Stringham v. Supervisors, 24 Wis., 594; Barthelemy v. People, 2 Hill, 257.

To compel a party to submit to being forced through this tedious and harassing routine of illegal proceeding and usurped jurisdiction is not only expensive and troublesome, but also vexatious in the extreme, and ought not to be allowed if it can be prevented. If there be no remedy by writ of prohibition in a misdemeanor case, by reason of

there being an appeal, there is none in a felony case. In both the justice acts coram non judice, but the statute allows appeals from judgments of a justice in all cases. But an appeal would not be either a speedy or adequate remedy in either a misdemeanor or a felony case. A party charged with any offense has the right to have it investigated in a proper court, and in a legal manner, and cannot be compelled to submit to an illegal and unauthorized investigation. He has the right to a legal investigation, not only because the illegal investigation is in itself unjust, but also because the party is entitled to have a judgment that he may plead in any subsequent proceedings upon the same charge. No citizen should be arrested and prosecuted before a court having no authority to hear, try, or determine the case.

It will be observed that this is not a case where the justice has acted within the scope of his general jurisdiction, and in doing so has merely exceeded his jurisdiction, but it is one where he has acted wholly "without" his jurisdiction. There is a total want of jurisdiction in him to hear, try, and determine the case: Clary v. Hoagland, 5 Cal., 476. Where a justice has general jurisdiction of the subject-matter, but has simply exceeded his jurisdiction, an appeal might be an adequate remedy, for in the appellate court the merits of the case could be examined into and the matter legally settled: Ex parte Pennsylvania, 109 U. S., 174; Ex parte Gordon, 104 U. S., 516. See also, Er parte Ferry Co., 104 U. S., 519; and Er parte Hagar, Id. 520; Henshaw v. Supervisors, 19 Cal., 150; Clark v. Superior Court, 55 Cal., 199.

But as we have already seen, this cannot be done when the justice acts wholly without jurisdiction, for in that case the appellate court can have no more authority to try the merits of the case on appeal than the justice from whose judgment the appeal was taken. The trial then in the justice's court would be a solemn mockery of justice. The punishment of the party could only be hoped for where he would be unable to take an appeal, for if an appeal be taken the proceedings would be dismissed by reason of the want of jurisdiction in the justice. The judg

ment would not shield the party charged from subsequent arrest and prosecution for the same offense. No good purpose could be served. It would be a fruitless work. A justice of the peace cannot be given unlimited power. Nothing is presumed in favor of his jurisdiction; it must be shown affirmatively. It is no satisfaction to a citizen, when arrested and forced upon his trial before a court upon a criminal charge, to be told that, although the proceedings are wholly illegal and void, he will have to submit to it, because when it is all through with he can take an appeal to the district court, and there have the proceedings dismissed. If an injury would be then done him, why not dismiss at once, and save him from being harassed and criminally dealt with upon unauthorized prosecutions? It would seem to be the duty of an appellate court to check such proceedings at the earliest possible moment. If a party desired a trial de noro, and that can be had in the appellate court, an appeal might be deemed an adequate remedy; but where there cannot be a trial de novo- a trial on the merits in the appellate court - an appeal would be vain and fruitless. It would settle nothing concerning the subject-matter of the action: Golding v. Jennings, 1 Utah, 135; Dill. Mun. Corp. sec. 744, note 2.

The law does not limit a party to a process that will be fruitless when there is one that may prove available: Paul v. Armstrong, 1 Nev., 95, 96. The remedy, in the ordinary course of law, must not only be specific, adequate, and legal, but it must be one competent to afford relief upon the very subject-matter of the petition: Fremont v. Crippen, 10 Cal., 211; Babcock v. Goodrich, 47 Cal., 508; North Bloomfield G. M. Co. v. Keyser, 58 Cal., 315.

An appeal in the case at bar would not be either a speedy or an adequate remedy. When all the proceedings should be gone through with in the justice's court, and in the district court on appeal, the petitioner would be left just where he stands when he makes this application for the writ of prohibition. It would not relieve him from the stain of the charge, and yet would afford him no relief by a lawful investigation. The charge made against the petitioner is one that can be investigated by a grand jury,

and if he be deemed guilty he should be indicted and punished; but, whether guilty or innocent, the law guarantees to him a legal investigation and trial, and these cannot be had in a court or before an officer acting wholly without authority of law. A party charged with an indictable criminal offense is, by the Constitution, guaranteed also a trial by jury. A pretended jury of six men is not a jury as known at common law, nor as contemplated by the Constitution and laws of the United States. Such a jury is composed of 12 men: 3 Bl. Comm. 352; Work v. State, 2 Ohio St., 396; Wynehamer v. People, 13 N. Y., 378; State v. Everett, 14 Minn., 439; (Gil. 330;) Vaughn v. Scade, 30 Mo., 600; Bowles v. State, 5 Sneed, 360.

The prevailing doctrine now is that, although there be no jury in the inferior court, yet if by appeal a party may have a trial by jury, the constitutional guaranty of trial by jury is not violated: Dill. Mun. Corp. 367; Sedg. Const. 491, notes and cases cited. Where, however, a justice acts wholly without his jurisdiction, and there be no provision for a jury trial in his court, nor in the appellate court, the objection that there is no jury trial in the justice's court is not satisfied by the appeal. In the present case no jury is authorized in the justice's court, and none can be had in the district court, as the case would have to be dismissed in the appellate court without trial. No jury would be authorized in the district court, for the reason that no trial could be had there upon the merits. The justice having no jurisdiction to try the case, the district court could acquire none by the appeal, as we have already seen. Upon the whole case, therefore, we conclude that the justice was acting, and proceeding to further act, wholly without his jurisdiction, and that the petitioner had no plain, speedy, and adequate remedy in the ordinary course of law, and is therefore entitled to his writ of prohibition.

As the points we have considered are decisive of the case, it is unnecessary for us to examine the other questions raised by the petition.

The peremptory writ of prohibition is by the court allowed, with costs.

POWERS, J., concurring.

Accusations of criminal conduct are tried at the common law by jury; and, wherever this right is guaranteed by the Constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused. A petit jury is a body of 12 men who are sworn to try the facts of a case as they are presented in the evidence placed before them. Any less than this number of 12 would not be a common law jury, and not such a jury as the Constitution guarantees to the accused parties.

In the case at bar I think that the accused was entitled to a common law jury that is, a jury of 12 men; and I agree with Judge Blatchford (Dana's Case, 7 Ben. 1) that to require a defendant to be convicted by a judge, or by six men, in order to have a trial in another court upon appeal, is too much a mockery to be regarded as in any just sense a compliance with the constitutional guaranty. I do not think that the objection to the proceedings of the justice's court is removed by the fact that a man can appeal his case, and secure a jury trial in the court above. It does not seem to me to be good reason or good law to compel a man accused of crime to submit to the proceedings of an unauthorized tribunal, saying to him in the meanwhile: "Although you are being tried unlawfully, if you do not like the result you can have a trial before a higher court." I agree with counsel for the petitioner that "it is not an answer to say that a justice has jurisdiction, without the means to enforce it, by reason of not being supplied with a jury. A court cannot be said to have a jurisdiction which it cannot constitutionally exercise." Jurisdiction is the power to hear, try, and determine. A justice has no inherent power to summon a jury. He cannot summon one unless the statute authorizes the act. The statute directing a justice to summon a jury of six is a denial of his power to impanel any other number. It is in fact the exclusion of any jury, because six men are not a jury in a case where a common law jury is required.