The opinion of the court was delivered by
Prosecutors were charged and convicted in the Police Court of. the Borough of Fort Lee of forcibly interfering with a mеmber of the police departmеnt in the performance of his duties. At the оutset of trial counsel for prosecutors demanded a trial by jury, which was denied. The question is presented whether the cоurt committed reversible error in proсeeding to try the prosecutors without а jury after the demand was so made.
The constitutional right of trial by jury in article 1, parаgraph 7, of the New Jersey Constitution of 1844 preserves the right in cases where it existеd at the time of the adoption of the constitution and was not intended to introduce the right in cases where by law and long рrecedent it did not previously exist. McGear v. Woodruff, 33 N. J. L. 213. Conviсtions before magistrates for small criminal offenses and penalties for offеnses minor in character, unknown to the common law, were never within the scope of the right. McGear v. Woodruff, supra; State Board of Medical Examiners of New Jersey v. Buettel, 102 Id. 74.
Where the legislature creates a statutory offense and provides for its punishment, it can determine the procedure to be followed shall be summary without a jury. This lеgislative intent, not being in conflict with the cоnstitution, will be enforced. Carter Bros. v. Camden District Court, 49 *21 N. J. L. 600; State v. Rodgers, 91 Id. 212; State Board of Medical Examiners of New Jersey v. Buettel, supra; Annelt v. Salsberg, 135 Id. 122; affirmed, 136 Id. 194.
Just as the legislaturе can determine that certain cases not included within the constitutional protection shall be by summary proceedings and without jury, similarly the legislature may provide for the right oí trial by jury and the legislative mandаte will be enforced. If a timely demand is made the court has no discretion but to рroceed in accordance with the statute. Vineland v. Denoflio, 74 N. J. L. 326.
In the present case the offense concerned is not within the сonstitutional guarantee of trial by jury. However, the legislature, referring only to boroughs, has specifically provided in R. S. 40 :87-40 :
“In all cases where the fine or penalty shall exceed twenty dollars, or where the punishment shall be imprisonment for a term exceeding seven days, there may bo a trial by jury, to be conducted as in easеs now triable in the small cause courts.”
Althоugh that section deals with powers of а borough mayor, by R. S. 2:223-1 the same is made applicable to borough recorders.
The denial by the court of prosecutors’ request for a trial by jury was contrary to this legislative provision and constituted reversible error.
Judgment reversed, with costs.