Charles Smith v. The City of San Antonio, 17 Tex. 643

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.