Trigally v. Mayor & Aldermen of Memphis

• Decision Date: 30 April 1869
• Citation: 46 Tenn. 382
• Parties: C. Trigally v. The Mayor and Aldermen of Memphis.
• Court: Tennessee Supreme Court

46 Tenn. 382

C. Trigally

v.The Mayor and Aldermen of Memphis.

Supreme Court of Tennessee.

April Term, 1869.

FROM MEMPHIS.

The plaintiff in error was fined ten dollars by the Police Commissioner for the City of Memphis, and appealed to the Municipal Court, where the judgment of the Commissioner was affirmed; and he has appealed to this Court. Judge GEORGE W. WALDRON, presiding.

L. C. HAYNES, STOCKTON and HART, for Plaintiff in Error.

JAMES O. PIERCE & DIX, for the Mayor and Aldermen.

HENRY G. SMITH, J., delivered the opinion of the Court.

Trigally was arraigned, tried, convicted and fined ten dollars, before and by the Commissioners of the Metropolitan Police of Memphis, on the charge of drunkenness in violation of the ordinance of the City of Memphis, prohibiting and punishing drunkenness in the city. The testimony upon the trial before the Police Commissioner, was reduced to writing by him in the progress of the trial. The defendant prayed and obtained an appeal to the Municipal Court of Memphis. A trial was had in that court, and the judgment of the Police Commissioner was affirmed; and from this judgment an appeal was granted to the defendant to the Supreme Court.

Upon the trial in the Municipal Court, the defendant demanded a jury, which was refused. The defendant objected to the reading of the testimony reduced to writing by the Police Commissioner. The objection was overruled, and the testimony was read; and upon that testimony, the conviction and judgment had before the Police Commissioner, were affirmed.

The errors assigned by Trigally, are:

First, The refusal of a trial by the jury, and trial by the court.

Second, The admission of the testimony taken and reduced to writing by the Commissioner, upon the trial before him.

Third, That the ordinances and modes of procedure, are partial legislation and not the law of the land.

Formerly the tribunal which took cognizance of offenses of this kind against the city ordinances, was the city Recorder. Recently, and by Legislative Act this jurisdiction was transferred to one of the three Commissioners of the Metropolitan Police.

Formerly the appeal lay to the Law Court of Memphis. Now the appeal lies to the Municipal Court, and this by Act of the Legislature.

The proceeding in the present case, was in conformity with the mode prescribed by the Code, sec. 4264 to 4269 inclusive. Those sections authorize the judge of the court to try and determine cases of this kind, upon the evidence reduced to writing by the Commissioner, and such other testimony as may be offered by either party.

The allegation of error proceeds on the assumption that the General Assembly of the State has not the power, under the Constitution, to deny to a defendant arraigned on such offense before such a tribunal, and punishable by a small pecuniary penalty trial by jury; or to admit, and convict a defendant, upon testimony of the kind employed in this case.

The clauses of the Constitution which are supposed to prohibit the mode of proceeding in this case, are to be found in secs. 6 and 9 of the first Article. The former declares, “that the right of trial by jury, shall remain inviolate.” The latter declares, “that in all criminal proceedings, the accused has the right to meet the witnesses face to face.”

The proper and settled construction of the constitutional provision which declares that the right of trial by jury shall remain inviolate is, that the right of trial by jury shall remain inviolate, as it existed at the formation of the Constitution. Cases which before the Constitution, were not triable by jury, need not be made so now. Parties can not now be deprived of trial by jury who were entitled to demand it, at and before the formation of the Constitution. And, on the other hand, cases not having the right at that time to demand a jury can not now demand a jury as of right, because of the constitutional provision: McGinnis vs. The State, 9 Humph., 50, per McKinney; 27 New York, 147; 9 Ind., 558; 11 New Hamp., 19, and cases cited in Cooley's Const. Lim., 410, n. 2; Sedg. Stat. and Const. Law, 548; 1 Bishop Crim. Law, sec. 758, n. 7.

Before the Constitution, divers actions between private persons, and prosecutions by the State for small offenses, were triable without a jury. Thus, by Act of 1741, chapter 14, section 6, justices of the peace were authorized to “convene before them,” persons committing the offenses designated, and to impose upon them fines and penalties as prescribed, and to set the offenders in the stocks, if they failed to pay the fines or penalties. Hunting, fishing, fowling, gaming, playing on the Lord's day, were punishable by fine of ten shillings, proclamation money. Cursing, swearing, by common persons, were punishable by fine, two shillings and six pence for each and every oath. Cursing or swearing, by a public officer, was punished at the rate of five shillings for each and every oath. Getting drunk on Sunday, was fined five shillings; on any other day, two shillings and sixpence. Fornication was fined twenty-five shillings. By Act of 1784, chapter 34, persons of ill fame, were forbidden to leave their county, without first obtaining a certificate from the sheriff of the county, or a justice of the peace, or the captain of his (the person of ill fame) company. If he left without the certificate, any person could apprehend and carry him before a justice of the peace, who was authorized to fine him not more than forty shillings. These examples are enough to show, that, before the Constitution, punishments might be inflicted for small offenses, without the intervention of a jury; and that the proceedings might be summary, and speedy, and efficient. Acts of the Legislature authorizing proceedings in the like manner, for the punishment of small offenses, were continued to be enacted, after the formation of the Constitution of 1796: See Acts of 1799, chapter 8; 1801, chapter 22; 1803, chapter 13 and chapter 47; 1813, chapter 135. Many of these laws have been carried into the Code, sections 1723 to 1728, inclusive; and proceedings are authorized to recover the penalties prescribed, without a jury: See 9...