
    The City of Memphis v. William Schade.
    Recorder’s Court. Jurisdiction on appeals from. Code, sec. 4268, providing that if, upon appeal therefrom, the judgment of the Recorder of the City of Memphis he affirmed, the Judge of the Law Court “ shall give judgment against the defendant and his sureties for the fine and costs,” does not confine the Law Court, in such appeals, to the alternative of an acquittal or an adoption of the fine imposed hy the Recorder. The Judge is to try the case with the same discretion as to the amount of the fine that the Recorder himself had. But he cannot reduce the fine helow the minimum penalty prescribed for the offense hy the city ordinances.
    PROM SHELBY.
    From the Law Court of Memphis, June Term, 1869. H. S. Lee, J.
    J. O. Pearce and W. M. Randolph for plaintiff.
    Georoe Gillham for defendant.
   McFarland, J.,

delivered the opinion of the court.

Schade appealed from the judgment of the Recorder’s Court of the City of Memphis to the Law Court.

The recovery had against him in the Recorder’s court was for twenty-five dollars, as a penalty for violating a city ordinance, by dealing out, or giving away, liquor from his place of business on Sunday.

The Law Court also gave judgment against Schade, but reduced the amount from twenty-five to ten dollars.

The city appeals.

The appeal from the Recorder’s court is provided for in sections 4264 to 4268 of the Code. The Judge is to try the case upon the evidence taken down by the Recorder, and such other as may be offered.

It is enacted in the latter section: — “ If upon the trial the judgment of the Recorder is affirmed, the Judge shall give judgment against the defendant and his sureties for the fine and costs”

It is argued, that if the Judge give judgment against the defendant, he must give judgment for the same fine, — that he has no discretion to change' the amount.

We think differently.

The Judge is to try the case just as the Recorder tried it, — with the same jurisdiction and discretion.

The Recorder might give judgment for a larger penalty than that provided by law. The Judge, upon appeal, might be satisfied of the defendant’s guilt. According to the argument, he would then be compelled to give judgment for this extra-legal penalty, or to discharge the defendant altogether.

We think that the Judge had the same discretion that the Recorder had: but, upon reference to the city ordinances, we find The lowest penalty prescribed for this offense is twenty-five dollars.

The Judge had, therefore, no discretion to fix the penalty at a less sum.

The judgment will, therefore, be rendered here for twenty-five dollars and costs.  