
    Charles Smith v. The City of San Antonio.
    A town or city ordinance which authorizes the Mayor to fine and imprison, without a trial by jury, is in so far unconstitutional and void ; and it is no answer to proceedings to set a-siib such sum nary conviction, that the accused did not demand a trial by jury, but merely excepted to the jurisdiction of the Mayor.
    It Wi.uld seem that a suit may be maintained in the District Court against a City, to recover back a fine and costs imposed and collected by the Mayor under an unconstitutional ordinance ; but perhaps this Court intended that the District Court should either try the original case anew, or order a new trial before the Mayor, with the right of trial by jury.
    Appeal from Bexar. Tried below before the Hon. Thomas •J. Devine.
    The petition of Smith, after stating the proceedings before the Mayor, continued as follows :
    The petitioner further says, that to avoid the necessity of being imprisoned, this petitioner paid the said one hundred dollars fine, under protest, all of which proceedings will more fully appear by a copy of the record of said proceedings hereto attached and marked exhibit “ C” and made part hereof.
    This petitioner further says, that said proceedings and said judgment are contrary to the law of the land ; that said pretended ordinance is contrary to the constitution and the law of the land, therefore void ; that all of said proceedings and said judgment are oppressive upon this petitioner and illegal, and that said Mayor had no jurisdiction enabling him to carry on said proceedings or to pronounce said judgment, and that the same are null and void.
    This petitioner prays that said city of San Antonio and the said James R. Sweet (the Mayor) be made parties to this suit, and that your Honor would grant your Honor’s writ of certiorari, commanding the said Mayor to certify his said proceedings and judgment to this Court, and that a supersedeas to the execution of said judgment be granted, and that said Mayor be ordered to refund to this petioner the sum of one hundred dollars so paid, as aforesaid, and the costs paid by this petitioner and for general relief.
    The exhibit attached to the petition marked “ 0” was admitted in evidence as the answer of James R. Sweet, Mayor, &c. This exhibit was the transcript of the proceedings before the Mayor.
    The case was submitted to the Judge of the District Court without a jury, by consent. The matters before the Judge at the trial, were the transcript of the proceedings before the Mayor, the papers, and the ordinance.
    The transcript of the proceedings before the Mayor contained an entry as follows : “ Exception to jurisdiction filed.” It showed the payment of the fine, but did not state that the defendant paid it under protest. The judgment of the Court was that the plaintiff take nothing by his suit, and that defendant recover all costs. Appeal by plaintiff.
    
      Hancock & West, for appellant.
    I. The Mayor, as a Justice of the Peace, had no authority to try parties for keeping a faro bank. Where does he acquire his power ?
    The Act of 1848 (Hart. Dig. Art. 1417) entrusts this power to the District Court.
    Let the Common Council enact, as the charter allows them, ordinances for the good gavernment and improvement of the city. They have no power to pass Criminal Laws and then sit in judgment the next day and imprison offenders against their ordinances. In this State the legislative and judicial power cannot and should not be vested in one person.
    II. If he had the power to try it, the Constitution expressly says that where the penalty before a Justice is fine or imprisonment, the accused shall have a jury. (Vide Burns v. Town of LaGrange, this Term Cons. Art. 4, Sec. 19.)
    
      I. A. & G. W. Paschal, for appellee.
    If the object was to obtain a trial de novo, upon the certiorari, then there has been no such disposition of the cause as gives this Court jurisdiction, and the result must be to dismiss it. But if the main object was an original suit to recover back the hundred dollars, then there was no error in the finding, that the plaintiff take nothing, because, he showed no case.
    The facts authorized the conviction. We don’t see what to say about the case. We ask that the judgment be affirmed.
   Lipscomb, J.

This suit commenced in the Mayor’s Court of the city of San Antonio, in which Court there was a judgment against appellant, for one hundred dollars and cost.; and in default of payment defendant was sentenced to be imprisoned for sixty days, for a breach of an ordinance of the Corporation. The appellant paid the one hundred dollars to avoid going to jail, and applied for and obtained a certiorari by which the case was taken to the District Court. In the District Court, a jury being waived, the Court affirmed the judgment of the Mayor’s Court, and Smith appealed.

The ordinance under which the appellant was tried in the Mayor’s Court, is as follows : “ Be it ordained, that any per-

“ son owning or renting or occupying any property within the “limits of this city, who shall permit any gambling within their “ premises, shall be liable to a fine of not less than ten dollars, “ nor more than one hundred, for each and every offence ; and “ in default of payment of said fine, shall be imprisoned not. "less than twenty nor more than sixty days ; said fine to be- “ recovered in a summary manner before the Mayor.

“ That any person found betting or interested in any game “ of farro, monte or other game that comes within the gener- ally understood meaning of games of chance, shall be deemed “ equally guilty with the owner or occupier of the premises,. and shall be subject to a like penalty.”

The penalty, it is seen, is in the alternative; it may be satisfied by the payment of the fine, or undergoing the imprisonment. By the 19th Section of the 4th Art. of the Constitution it is provided : “ In all cases where Justices of the Peace or other “ judicial officers of inferior tribunals shall have jurisdiction “in the trial of causes, where the penalty for the violation of' “ a law is fine or imprisonment, (except in cases of contempt) “ the accused shall have the right of the trial by jury.”

Under this Section of the Constitution, we decided at the-present Term in the case of Burns v. The Town of LaGrarige, that the ordinance of the Town Council, imposing a fine without a trial by jury, was unconstitutional and void. The difference between that case and this now before us is, that in that, the accused claimed the right of a trial by jury, in this the accused did not claim the right, but only protested against the-action of the Mayor. Wo have given due consideration to this difference in the two cases, and we believe it ought not to-change our judgment, and make it different in the two cases ;• that as the ordinance under which the Mayor acted, gave him no authority to impannel a jury, it would have been vain and useless to have demanded it from him. The ordinance, so far-as it authorizes the Mayor to fine and imprison without giving authority to impannel a jury, we regard as repugnant to the Constitution and void. The District Court ought therefore to-have given judgment in favor of the accused.

We are fully impressed with the necessity of vigorous and stringent laws for the suppression of gambling, a vice that associales with it, and drags in its train, almost every conceivable crime ; yet, as the guardians of the Constitutional rights of the citizen, no matter what his crime may be, we cannot permit any consideration of policy, for a moment to impair our judgment. The judgment of the District Court is reversed, and the cause remanded to the District Court.

Reversed and remanded.  