
    The City Council of Charleston vs. J. Stelges.
    A penalty not exceeding twenty dollars, for violation of an Ordinance of the city of Charleston, may be recovered before tbe Recorder, without the aid of a jury, although the defendant demand one.
    BEFORE MAOBETÉT, R., IN THE CITY COURT OF CHARLESTON.
    Tbe report of bis Honor, tbe Recorder, is as follows:
    
      “ This was a suit by way of Summary Process, for twenty dollars, for an alleged breach of 22d Sec. of an Ordinance of tbe City Council of Charleston, ratified 29th November, 1886, entitled, “An Ordinance regulating retailers of spirituous liquors, &c.” When tbe case was called for trial, tbe defendant’s counsel demanded a jury, which I refused. Tbe witnesses for tbe plaintiff proved tbe violation of tbe Ordinance, and there being no defence offered, I decreed for tbe plaintiff, twenty dollars.
    “ A practice appears to have grown up in this Court, of submitting suits brought for penalties incurred by tbe violation of tbe Ordinances of tbe city, where such penalties do not exceed twenty dollars, to a jury for decision. I feel it, therefore, incumbent on me, to submit my reasons for refusing a jury in this case. Tbe City Court of Charleston was established by an Act of tbe Legislature, passed 19th December, 1801; 2 Faust, 392. Tbe first sec. of tbe said Act establishes tbe Court, and gives it jurisdiction to try all offences against tbe by-laws of tbe city of Charleston. Tbe third section of tbe same Act provides that all issues, controversies and litiga-tions, in tbe said Court, of which the value shall exceed tbe sum allowed by law for tbe jurisdiction of a single magistrate, shall be tried by a jury. By an Act of tbe Legislature, passed 21st December, 1799, 2 Eaust, 318, tbe jurisdiction of a single magistrate was fixed, as far as regards tbe amount, to twenty dollars. It would, therefore, seem, from tbe above Acts of tbe Legislature, that a jury was not necessary to try offences against tbe by-laws of tbe city in tbe City Courts, except in cases where tbe value shall exceed twenty dollars.
    It is objected that this is a penal action, and that, therefore, a trial by jury is necessary. Whether it is competent for tbe Legislature to empower any magistrate to try cases for penalties, where the sum does not exceed twenty dollars, I shall not inquire, as tbe suit in this case, although for a penalty, I do not regard as a penal action. The obligations of a corporator to keep inviolate the Ordinances and ByLaws of the Corporation of which he is a member, are based upon his assent to them, either express or implied. Angel & Ames on Corporations, 301. The debt which he incurs for a violation of any of them, is, therefore, quasi ex contractu, and is recoverable by an action of debt, or assumpsit. Com. Dig. By-Law, D. I.” N
    The defendant appealed on the grounds:
    1. Because, being a penal action for the alleged violation of a City Ordinance, he should have been allowed a trial by WW-
    2. Bec'ause the decree was otherwise contrary to law.
    
      Pope, for appellant.
    
      Porter, City Attorney, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The first section of the Act of 1801, 7 Stat. 301, established the City Court and conferred upon it a concurrent jurisdiction with tbe Court of General Sessions of the Peace and Common Pleas, but limited the jurisdiction in the Court of Sessions to offences against the By-Laws of the Corporation. 1

The 3d § declares that all issues, controversies and litigations in said Court” (the City Court) “ of which the value shall exceed the sum allowed by law for the jurisdiction of a single magistrate, shall be tried by a jury,” &c.

The case before us, it will be remembered, is a sum. pro. for the recovery of twenty dollars, a fine incurred by the owner of a shop for a violation of the City Ordinance, 22d. §, Ordinance of 1836 City Ordinances, 223.

The question would hence seem to be of easy solution, by answering the question, what was the sum allowed by law to the jurisdiction of a single magistrate ?

By the Act of 1788, 7 Stat. 247, the jurisdiction of a magistrate where County Courts were established, was declared to extend to five pounds, equal to twenty-one dollars and forty-three and one-third cents. In 1791, 24 §, 7 Stat. 277-8, this jurisdiction was. also conferred on magistrates where County Courts had not existed. County Courts never existed in Charleston, Beaufort or Georgetown.

. The Constitution of 1790, Art. 9, § 6, provides, that, “ the trial by jury as heretofore used in this State shall be for ever inviolably preserved.” No doubt this referred to the then existing laws — and wherever a trial by jury had not been previously taken away, it was in all time to come to exist. A magistrate's jurisdiction existed in every part of the State, (except the three districts already mentioned) for the trial of all cases of debt without a jury. No doubt this was that, by which the Constitution was to be understood. The cotem-poraneous construction was to that effect. For the Legislature, in 1791, conferred the jurisdiction in cases of debt to five pounds on magistrates, where tbe County Courts bad not existed.

In White vs. Hendrick, 1 Brev. 470, an Act of tbe Legislature increasing tbe jurisdiction of a magistrate to thirty dollars was adjudged to be unconstitutional, as infringing 9 Art., 6 §, of tbe Constitution.

I take it therefore to be plain, that a magistrate’s jurisdiction, as. high as five pounds — twenty-one dollars and forty-three and one-third cents, — is perfectly constitutional, and so far under tbe Ac't of 1801, establishing tbe City Court, tbe City Recorder may try and decide cases without a jury.

But it is argued, that a magistrate cannot bear a case for a penalty under twenty dollars. This is true, as was decided in Anderson vs. Fowler, 1 Hill, 226. But tbe reason is plain, tbe jurisdiction to bear such cases has not been given to him. If it bad been, as it has been to tbe Commissioners of tbe roads, and tbe town and village Corporations, there would be no doubt that be could try such cases, and enforce them by execution as tbe Commissioners of roads, town and village Corporations, impose and collect fines under twenty dollars. In tbe Act of 1801, tbe jurisdiction is conferred on tbe Recorder.

Tbe motion to reverse tbe Recorder’s decision is dismissed.

WhitNER, (Llover. and MüNRO, JJ., concurred.

Motion 'dismissed.  