The errors assigned in this case present the question, whether “ the Mayor’s Court of the city of Wilmington,” has jurisdiction under the constitution and laws of this state, to inquire of, try and determine, by information, and without a jury, the offence of assault and battery, committed within the city limits.
The origin of the Mayor’s Court, under that name, and with the *89 powers claimed for it in this case, is admitted to be under an act of assembly entitled “ a supplement to the act entitled an act to alter and re-establish the charter of the borough of Wilmington,” passed at. Dover, January 18, 1832, (8 vol. 97.) For though it is contended that the franchise of holding a court existed in the corporation of the borough of Wilmington, under its charter of 1772, and before the constitution either of 1831, 1792 or 1776, it is admitted that this franchise was but the power to appoint certain officers called burgesses, whose judicial functions extended only to the discharge of those duties within the borough, “ which justices of the peace for the county of New Castle could lawfully do.” Admitting that this franchise existed before, and has not been in any manner affected by, the constitutions since adopted, it certainly does not vest the power now claimed by the corporation of the city of Wilmington, and cannot, in itself, be relied on as authorizing a court composed of very different officers, to wit: a “ mayor, alderman, and president of the city ■ council,” and exercising more general jurisdiction than that which belongs to justices of the peace for the county of New Castle. Resorting, therefore, to the act of 1832, as the origin ef this court, as at present organized, and with the jurisdiction and powers now claimed for it, I shall inquire—
1st. Whether it was competent to the legislature to found this court upon, and by way of extension or enlargement of, an ancient franchise existing in the corporation; and,
2d. Whether, .under the constitution, it was competent to the legislature to create a court with the jurisdiction and powers of the Mayor’s Court for the city of Wilmington, and with authority to exercise those powers within its jurisdiction in the manner and form adopted in the present case.
It is conceded that the subject of the grant, in this case, is judicial power. • Whether granted as a franchise, or otherwise, the Mayor’s Court for the city of Wilmington is a court; its officers, whether officers of the state or of the corporation, are judicial officers, and the exercise of their proper functions is an exercise of judicial power.
The 6th article of the amended constitution of the state, vests the judicial power of this state in a Court of Errors and Appeals, a Superior Court, a Court of Chancery, an Orphans’ Court, a Court of Oyer and Terminer, a Court of General Sessions of the Peace and Gaol Delivery, a Register’s Court, justices of the peace, and such other courts as the general assembly, with the concurrence of two-thirds of all the members of both houses, shall from time to time establish.
By the 11th section, the jurisdiction of the Court of General Sessions of the Peace is (with the other courts,) made “ co-extensive *90 with the state;” but by the 12th section, power is given to the legislature to repeal or alter any act of the general assembly giving jurisdiction to that court, in any matter. The subject matter of the jurisdiction of the Court of General Sessions of the Peace, not being the subject of constitutional provision except by reference to “ the jurisdiction and powers heretofore vested by the laws of this state in the Court of General Quarter Sessions of the Peace,” is entirely derived from acts of the general assembly; it follow’s, therefore, that the legislature have the power to take away from this court, not only its jurisdiction over assaults and batteries, but to deprive it.of-any or all the subjects now embraced within its jurisdiction.
If the constitution had rested here, with the declared right in the general assembly (two-thirds of the members of both houses concurring) to “ establish other courts,” and the express power to take away from the Court of General Sessions of the Peace, the jurisdiction of any offences cognizable before it, the argument would have been very strong that claimed for the legislature the power to transfer to such other courts as might be established, any or all of the jurisdiction that might be so taken away from this court.
But although this argument is confirmed by the 15th section, in relation to assaults and batteries, and the class of cases there enumerated, an implied restriction is imposed on the grant of jurisdiction to any other courts which may be established by the legislative power; a restriction which, if it do not embrace the case of the plaintiff in error, is necessary to be kept in view, as it is directly violated in the 17th and 18th sections of the city charter, which sections, with the 19th, organize the Mayor’s Court, and give it all its powers.
The restriction to which I refer is necessarily implied from the grant of power contained in section 15. “The general assembly may by law give to any inferior courts, by them to be established, or to one or more justices of the peace, jurisdiction of the criminal matters following, that is to say: assaults and batteries, keeping without license a public house of entertainment,” &c. &c. &c., specifying by name the offences, and all the offences, which could be made cognizable before such inferior courts, as two-thirds of the general assembly might from time to time establish.
My construction of the constitution, therefore, is, in reference to the power of the legislature to create other courts, to invest them with criminal jurisdiction now belonging to the Court of Genera] Sessions of the Peace, either concurrent with that court or exclusive ; and to take from that court any portion or all of its criminal jurisdiction;
*91 1st. That the legislature may establish other courts, and give them criminal jurisdiction, either concurrent with our present criminal courts or in exclusion of their jurisdiction.
2d. That in the establishment of inferior courts, under the 15th section of the 6th article of the amended constitution, their jurisdiction must be limited to the offences enumerated in the said section: and,
3d. That though the legislature may repeal any law giving criminal jurisdiction to the Court of General Sessions of the Peace, and thus in effect abolish the cognizance of the offences comprized in such law, they cannot transfer the jurisdiction of such offences to any inferior courts to be established by them, except as before stated in regard to the class of cases mentioned in the 15th section.
The 17th section of the Wilmington charter establishes a Mayor’s Court, and gives it jurisdiction over “ all larcenies, assaults and batteries, riots, routs, and unlawful assemblies, nuisances, and other of-fences ” committed within the city, “ and to punish all persons who shall be convicted of the same offences, or any of them, agreeably to the laws of this stateand to try and determine all offences committed within the said city against any of the laws, ordinances, regulations or constitutions of the said city; to impose fines on jurymen, take recognizances of bail and the peace, &c., &e.; and expressly excludes the jurisdiction of the Court of General Sessions of the Peace over any of the matters thus made cognizable in the Mayor’s Court.
The 18th section gives to the Mayor’s Court the' powers of a superior court in the very words in which that power is conferred on the late Supreme Court and the present Superior Court 7 to examine, correct, and punish the contempts, omissions, neglects, favors, corruptions and defaults of justices of the peace, sheriffs, coroners, clerks or other officers, without restriction or limitation.
Neither larcenies, riots, routs, nor unlawful assemblies, are included within the class of offences, which, by the 15th section of the 6th article of the amended constitution, the legislature are authorised to assign to inferior courts by them to be established; and if the term “ other offences,” mentioned in the act, is not to be restrained to offences inferior in grade to those already enumerated, there is no limit to the jurisdiction of the Mayor’s Court over offences committed within the city. Nor can it be believed that the convention intended to give to the legislature the power to devolve on an “ inferior court ” — upon even the agents of a corporation, as it is con» tended these officers of the Mayor’s court are — the highest powers of a superior court, to wit: of visitation and correction of errors % *92 the power to examine, correct- and punish the contempts, omissions, neglects, favors, corruptions and defaults of other courts and officers — courts and officers created by and deriving their existence from the constitution itself. Yet such powers are conferred on the Mayor’s Court by the 18th section of the city charter.
I think I risk nothing in saying that this grant of power is unconstitutional and void. It is not embraced within the letter of the constitution ; it is not contemplated by its spirit or intent; it is not necessary or useful in reference to the objects for which the door was left open for the establishment of other and inferior courts; it is plainly in consistent with the idea of an inferior court to place in the hands of a tribunal claiming to be merely a corporation franchise, exercising its functions through corporation agents, not selected by nor responsible to the public at large; powers and jurisdiction equal to and exclusive of the highest judicial tribunals of the state, and superior to courts and officers deriving authority immediately from the constitution itself.
But while I conclude that it was not within the constitutional competency of the general assembly, to give to the Mayor’s Court jurisdiction of many of the offences mentioned in the 17th section of the city charier, nor to confer upon it the powers mentioned in the 18th, I am equally clear that the legislature were authorized to give to that court the power and authority contained in the 19th section, (and which embraces the present case,) provided that neither the organization of the court nor the discretion given to the city council, to dispense with trial by jury, shall have vitiated the grant. And this brings me to inquire.
1st. Whether the legislature could bestow upon a corporation the franchise of holding a Mayor’s Court, either originally or by way of enlargement or extension of an ancient franchise of a similar character, and inclnding by consequence, the right to appoint the officers of such court.
2d. Whether they could vest in the Mayor’s Court the power to try the offences enumerated in the 15th section of the 6th article of the amended constitution, “ with or without trial by petit jury, as should be provided by the ordinances of the city.”
A public corporation may, at common law, enjoy the franchise of holding a court. Thus, 1 Inst. 114, 4 Inst. 87, 224, “ a mayor or bailiff of a town may have liberty to keep courts, and hold pleas in a certain place, according to the course of the common law : and power to draw causes out of the king’s courts by an exclusive jurisdiction.” Jac. Law Die., tit. Franchise. And such a franchise existed in this corporation before the constitution. I speak of the *93 character of the franchise, not of its extent or degree. The corporation of Wilmington enjoyed by patent, dated in 1739, the right to elect two burgesses and six assistants, with a high constable and town clerk, which burgesses by the same patent, and also by the act of 1772, were invested with all the judicial powers, within the corporation limits, of justices of the peace within the county. The franchise, therefore, of holding courts co-extensive with the powers and jurisdiction of justices’ courts, by officers of their own appointment, existed in this corporation before the constitution; has been confirmed by subsequent laws, and is expressly saved by the 8th section of the 7th article of the amended constitution. “ The rights, privileges, immunities, and estates of religious societies, and corporate bodies, shall remain as if the constitution of this state had not been altered.”
If such a franchise existed in this corporation before the amended constitution, and indeed under it, because recognized and confirmed by that instrument, could the legislature enlarge the franchise and extend its jurisdiction by increasing the powers of the corporate officers ? If it could, the objection to the mode of appointing these officers will no longer hold ; nor will that constitutional provision be violated which provides that the governor shall appoint all officers whose offices are established bv the constitution, or shall be established by law, and whose appointments are not therein otherwise provided for. For these are not officers, either of the state or county, but of the corporation; and, though it should be-conceded that the court, as a Mayor’s Court, under its enlarged jurisdiction and new name, is established by the act of 1832, it is only by the increase of powers of officers existing before the constitution, and whose appointments are therein otherwise provided for, to wit: by the saving of the right to the corporation of Wilmington to elect its own officers.
I can see nothing in the constitution to prevent the legislature, which, according to the 15th section, “ may by law give to any inferior courts by them to be established, or to one or more justices of the peace, jurisdiction of the criminal matters ” therein enumerated, from giving this jurisdiction to officers of the corporation of Wilmington, which, from time immemorial were, as to all matters arising wtthin the corporation limits, justices of the peace. The argument would be strong if confined to the 15th section, and founded on the right of the legislature to enlarge the powers of these corporate officers as justices of the peace. It would certainly be within the spirit, if not within the letter of that section; but it is, in my view', strengthened and established by reference to the 1st section, *94 which authorizes the vesting of judicial power " in such other courts as the general assembly, with the concurrrence of two-thirds of all the members of both houses, shall from time to time establish.” If the legislature could originally vest judicial power as a franchise in this corporation, they have the right to enlarge and increase it to any extent not prohibited by the constitution; and they were authorized to select this corporation court, and bestow upon it all the jurisdiction that they could confer on any other inferior court of their creation. Having selected it, and established it as a court, with enlarged powers, the appointment of its officers remains as heretofore in the corporation, and cannot be taken from it without violating its ancient franchise.
This point might, perhaps, have been .avoided, by adopting the position taken in behalf of the defendant in error, that it is not competent for the court, on this writ of error, or otherwise than by quo warranto, to inquire into the mode of appointing the judges of the Mayor’s Court; but the question must soon arise in such a shape that it may not be avoided, as there are several other cases remaining on the docket, in which the proceedings of that court are to be tested by the constitution. I have thought proper, therefore, at this time to meet the question; and I think it of great consequence that the public should know, at once, what is the opinion of this court on these constitutional questions.
I hold, that the Mayor’s Court for the city of Wilmington, is a court legally organized in conformity with the constitution, having jurisdiction within the city limits, over the criminal offences enumerated in the 15th section of the 6th article of the amended constitution; and also of the offences against city regulations, enumerated in the 17th section of the city charter; but that it has not the jurisdiction claimed for it in the said 17th section, over all larcenies, riots, routs and unlawful assemblies and “ other offences” against the laws of this state; nor has it the full power and authority of this court, to examine, correct and punish the contempts, omissions, neglects, favors, corruptions and defaults, of all or any of the justices of the peace, sheriffs, coroners, clerks or other officers ; though the 18th section of the charter does assume to give it these powers.
There remains one question for consideration, and that is, whether the Mayor’s Court, in the exercise of that jurisdiction which does belong to it, may proceed, in virtue of an ordinance of the city council, upon information, and without trial by a petit jury.
It is admitted, that an ordinance of the city council, directed the proceedings in the Mayor’s Court in these cases to be “ upon information filed by the prosecuting officer for said court, and without *95 trial by petit juryand that this ordinance was passed in pursuance of the 19th section of the city charter, which authorizes the Mayor’s Court to try all those criminal matters enumerated in the 15th section of the 6th article of the amended constitution “ without indictment by grand jury, and with or without trial by petit jury, as shall be provided by the ordinances of the said city —but it is contended that the legislature had no right thus to authorize the city councils to take away the trial by jury; in short, that the law conferring that power is unconstitutional.
By the 15th section of the 6th article of the amended constitution, it is provided, in reference to these inferior courts, that “ the general assembly may by law, regulate this jurisdiction and provide that the proceedings shall be with or without indictment by grand jury, or trial by petit jury; and may grant or deny the privilege of appeal to the Court of General Sessions of the Peace.
It is conceded that this provision gives to the legislature the power to take away the trial by jury, in cases before the Mayor’s Court; but it is said that the act of 1832, is not a valid execution of this power, inasmuch as the legislature have not by that act, directed the trial to be without jury, but left it to the city councils to determine whether such trials shall or shall not be by jury.
I confess myself unable to appreciate the argument which denies to the legislature the right to pass a conditional law, in a matter over which they have the absolute power of legislation. So long as the mathematical axiom, that the greater includes the less, remains to be true, it does appear to me that the power to say definitively, that all trials in the Mayor’s Court shall be without jury, includes the power to say that such trials shall be without jury, if the people of the city, through their proper organs, the city councils, shall so will it. Is this a delegation of legislative discretion? Not at all. The legislature act on the subject. They declare that the proceedings shall be without trial by jury, only in one event; and on the passing of an ordinance, the will of the legislature is as fully expressed against a trial by jury in these cases, as if they had directed the trial to be without jury at the first, and without waiting for the ordinance. The condition is in favor of the trial by jury. It leaves the corporation at liberty to apply that mode of trial to such cases as they may consider it expedient to extend it to; in all other cases, the legislature provide and authorize the proceedings to be without jury. Nor is this mode of legislation uncommon. Numberless instances might be collected from our statute book. I refer to but one, which is so directly in point, and affords in itself so many instances of the application of this discretionary or conditional legislation, that its. force as a precedent can *96 not but be felt. The supplement to the act for the establishment of free schools, authorizes a tax to be levied and raised in each school district; but the 5th section provides that no such tax shall be levied in any school district “ without the express will and consent of a majority of the school voters in such district, such majority to be ascertained by ballot.” Here is an instance of conditional legislation, on that important subject of taxation; and we know that in practice the result has been, to make this law operative as a taxing law in some districts and inoperative in others, and variable at different periods in the same district. It proceeds on the principle, that the legislature having the power of taxing absolutely, may exercise that power conditionally, and make their legislation depend on the will of those immediately affected by it; providing at the same time a certain rule of evidence of that will. So in the case before us, the legislature having the power to dispense with trial by jury in certain cases absolutely, have done so conditionally, provided that the people of Wilmington, who are to be affected by it, shall choose that mode of proceeding, and the evidence of their choice is the ordinance of their city council.
This view is strengthened by the case cited
from
On the whole, I see no error in this record, and I am of opinion that the judgment of the Mayor’s Court ought to be affirmed, with costs.