37 N.J.L. 145 | N.J. | 1874
The opinion of the court was delivered by
The questions involved in this case are identical with those in the cases of Blatz, Smith, Flanagan, Sullivan and Herold, respectively, against the same defendant.
The cases were argued together, and the decision of one will dispose of all.
The certiorari brings up the judgment and proceedings of the city judge of Plainfield, in a matter of complaint made against the defendant, for violation of the ordinances of said city, whereby it is in substance declared that no person shall in any manner sell or dispose of spirituous or fermented liquors within the city limits, unless licensed to do so by- the
By the charter of Plainfield (Laws of 1872, p 1145,) it is enacted that the common council shall have the exclusive right and power to regulate or prohibit the sale of spirituous and fermented liquors within said city, as they deem most conducive to the public good, and that no person shall in any manner sell or dispose of spirituous or fermented liquors, unless licensed to do so by the common council. By the 18th section of the charter power is given the common council to prescribe, by ordinance, fines and penalties for the violation of any of its ordinances, with the proviso that the amount of fine shall in no case exceed $100, or the term of imprisonment twenty days, preserving the right of trial by jury, if demanded by the defendant, in all cases where the punishment prescribed may be imprisonment, or the amount of the fine exceed $20.
The defendant on the trial below, though but one penalty of $20 was demanded and recovered, claimed a right of trial by jury, which was refused, and this is alleged for error.
The ordinances being strictly within the terms of the city charter, if we reverse the judgment below on the ground stated, we must necessarily hold that the charter, in the particular under consideration, is void. This we are asked to do, because, as alleged, it is in violation of that provision of our state constitution, which ordains that the right of trial by jury shall remain inviolate. It was held in the case of McGear v. Woodruff, 4 Vroom 213, that the constitutional provision above referred to was substantially the same as that upon the same subject contained in the Constitution of 1776, and that neither was intended to extend the right of trial by jury to cases to which it did not previously attach. In that case, as well as in the case of Byers et al. v. The Common
The defendant in the case before us, has been summarily prosecuted and convicted, not for a criminal offence against the state, but for an offence committed against the city, in violation of its internal police regulations. The same legal principles adjudicated in the case of McGear v. Woodruff, and Byers v. The Commonwealth, above referred to, underlie and sustain the judgment under review. There are undoubtedly many criminal offences, the prohibition and punishment of which, cannot constitutionally be delegated by the legislature to a municipality as offences cognizable by it under the powers of police, but I do not think the retailing of intoxicating drinks, or the keeping of tippling houses, is included within that category. The defendant below, was not entitled to a trial by j ury.
Another reason assigned for reversal is, that by the first section of the act of April 1st, 1873, (Laws, 1873, p. 482,) all ordinances of the city of Plainfield previously passed were .abrogated. The judgment brought up by this certiorari is founded on ordinances passed in 1872. The first section of the act of 1873, enacts that for the violation of any of the ordinances of said city, there may be imposed a fine not exceeding $100, or imprisonment not exceeding sixty days, or either, as the court having jurisdiction may decide, and whenever an imposed fine is $20 or under, there shall not be granted a trial by jury. A subsequent section of the same act, repeals all laws inconsistent with its provisions. The contention is, that this act makes it the duty of the court before which a prosecution is instituted for a violation of a city ■ordinance, to fix within the prescribed limits, the punishment to be inflicted. This is not the proper construction of the act. It simply enlarges the power of the common council and makes it lawful for it to impose, by way of punishment, a
The judgment below must be affirmed, with costs.
Justices Bedle and Depue concurred