State v. Boise

51 P. 110, 5 Idaho 519, 1897 Ida. LEXIS 46

• Court: Idaho Supreme Court
• Decided: November 17, 1897
• Status: Published

Opinion

HUSTON, J.

In the preparation of the transcript in this case there does not seem to have been even an attempt to comply with the rules of the court. There is scarcely a requirement of the rules that has not been ignored. Some latitude is usually extended in criminal cases in matters of appeal, both by the statutes and by the rules of 'court, but never to the extent assumed in this case. We should dismiss the appeal for want of a proper transcript were it not that an examination of the record satisfies us thai; the district court had no evidence before it upon which to predicate its judgment. The action was brought against the defendant for an alleged violation of what is commonly known as the “Gambling Law,” being a statute against gambling passed by the last legislature of this state. Upon the trial a demurrer to the complaint was interposed. A stipulation was entered into by the attorney acting for the state and counsel for the defendant, wherein and whereby it is agreed that certain writings therein contained constituted a copy of the journals of the Senate and House of Eepresentatives of the Idaho legislature, and it was upon the demurrer and this stipulation that the district court predicated its judgment, and passed upon the constitutionality of the enactment of the statute under consideration. We know of no authority for such proceedings. Before a court will assume to pass upon the constitutionality of the enactment of a statute by the legislature, it should have before it a copy of the original journals, showing the whole record of enactment, duly certified by the Secretary of State, the proper and legal custodian of such records. The judgment of the district court is reversed, and cause remanded for further proceedings in accordance with this opinion.

Sullivan, C. J., and Quarles, J., concur.