Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-05-26

No. %. c.. TrigalIy VS.. Mayor and Alder
men of Memphis-from the Memphis Mu-
nicipal Court. Trigally was triedand con-
victed on a charge of drunkenness and
fined ten dollars, for a violation OF an or
dinance of the city of Memphis, prohibit
ing drunkenness in the city, TIL eonyic-
acting as a City Recorder. The testimony
taken on that trial was reduced to wri-
ting in the presence of Trigally, who
prayed an appeal to the Municipal Court.
The Municipal Court affirmed the judg-
ment of the Commissioner and Trigally
appealed to this Court. On the trial in
the Municipal Court Trigally, by his coun-
sci, demanded trial by jury, which was
refused.
The plaintiff in error then objected to
the reading of the testimony reduced to
writing by the Police Commissioner h
objection was Overruled and the testimo-
ny was read.
Held, Smith Judge, delivering the opin-
ion of the Court:
LIST. That the plaintiff in error was not
entitled to a trial byjury. The proceeding
in this case is in conformity with the
mode prescribed by the code, Sections
1864 to 1909.
BY Sections6 and 8 of Article I of the
Constitution the trial by jury, and the
procedure in criminal prosecutions shall
remain inyiOlate as thew existed at the
formation of the Constitution of 1896.
Cases which before the Constitution
were not triahle by jury, neednot be made
so now. And parties cannot o be de-
privedof trial by juryswhO were entitled
to demand it at and before the foundation
of the Constitution. McGinnis VS.. State,
8 Hum. %; % New York l47; Q Ind. SIS;
IL New Hamp. 10; Cooley on Const. Law,
! 410s SndpyVipE on STAT and EOnGf Law
54S; l Bishop on Grim. Law, sec. T5S, note
Z. Before the adoption of the COnstitu-
ton, under various acts of the Legisla-
lures small offenses were punishable by
pecuniary penalties, inflicted by Justices
Ofthe Peace, who had authority to place
the offenders in the stocks on the n
payment Ofthe fines. Such were the Of
lenses of hunting, fishing or gaming on
the Lords day-cursing and swearing by
common persons and public offieers-get-
ting drunk on Sunday. Acts Of the Leg
islature authorizing proceedings in the
like cases without trial by jury, were en-
acted after the formation of the COHstitu-
| ton of 1856. Such are acts of 1899, ch. s;
| 1901, ch. D; 1895, ch. Is and AZ; 1913, ich.
| 135. Several of these enactments have
been carried into the code, from LIS TO
| l72S inclusive. In Georgia n similar Con
stitutionaI provision is held not to apply
to the enforcement Ofthe bylaws of a mu-
| nicipal corporation without ajury trial. 4
Georgia Rep. 500; IA Georgia Rep. 354. In
| Vermont it is held not to apply TO small
| offenses against the police regulations Of
the State, such as a violation of the pro-
hibitOry liquor law, q Vermont Rep. SIS,
325. See also GraNSs. State, ? Harring-
ton, Delaware Rep. 70; l Bishop Grim.
Law, sec. 15S.
City ordinances, like the one under re
view, are not obnoxious to the Constitu-
1 finnaI rula Enpp-n ~ tho sk1av- of thu
land or to any OtAer Constitutional pro-
vision.
Corporation courts are provided for in
sec. |, Ort. 6, Of the Constitution.
A strong, prompt and efficient police
power is necessary to the proper govern
ment of the aggregated masses of cities.
| Such ordinances as the one in contest
have been enacted in all the States of the
Union from the first colonization of the
| country, and existed in England from the
first period of its known history. Such
| ordinances, though peculiar to a particu-
lar municipality, are not partial laws in
the sense of the constitution. On the
| contrary they are regarded with favor, as
| they are adapted to the peculiar wants of
the several localities where enacted.
I'd. This is not a criminal prosecution
within the meaning of the 9Th section of
Art. l of the Constitution, and hence it
| was not cO~nstitutionally Objectionable to
perpetuate the original testimony before
| the Police Commissioner, and to read the
same on the appeal in the Municipal Court.
There is no error in the judgment below,
and it is affirmed.
No. 2b. Same vs.. same. The plaintiff in
error was med Sj0-for an assault on a pO-
lice officer. the same being a violation of
a city ordinance on the subject, and the
principles involved in this case being the
same as are determined in the case above,
Il fhn arrlrnyNnnf ~, Fhr1 .nEn - also nf
firmed.
No. n. Mayor and Aldermen of Mem
phis VS.. Joseph LenOW. From Memphis
Municipal Court. In 1856 the Mayor and
Aldermen of Memphis granted to defend
ant in error, LenOw, permission by Ordi-
nance to make an entrance 10 the base
ment or cellar of a house on Madison
street, in Memphis, by a descending stair
way, occupying a space of five feet of the
public sidewalk of the street outside Of
the wall of the house of the defendant.
Lenow, under the permission granted by
the said ordinance, constructed his stair
way, and occupied and used b same on
t~inuously to the beginning of the action.
In 1867 the Mayor and Aldermen enacted
an ordinance requiring the removal of all
distinctions from the sidewalks of the
public streets, and the closing up of all
entrances to easements of buildings,
where such entrances encrOach on the
public sidewalks.
The defendant refused to obey the Ordi-
nance, whereupOn the city instituted this
action before the Police Recorder TO re-
coverthe penalty prescribed by ordinances
in such cases.
The defense set up by the defendant is
that the grant of the permission by the
city authorities, and the expenditure by
him of money to construct he stairway, |
and the long continued use and enjoy
T,apf" oF - forroI ~, HIN. a rsrrh4 arI
property not subject to be Invested or ter
minated by the subsequent action Of the
Mayor and Aldermen, and that they are
estopped from revokine the permission.
Held, Smith, Judge, delivering the Opin-
ion of the Court, that the defense in this
case is without merit. The only effect
which can be given to the permission
granted is of a license determinable and
revocable at the Will of the Mayor n
Alderman.
The transaction has in it nothing
of the quality of contract upon
a consideration between the parties; nor
of q surrender or abandonment or release
by the city 10 Lenow, of the right of the
public to the unObstructed use of any part
of the sidewalk; nor of any estate, inter
est or right in Lenow, which he can main
tain or hold against the will of the Mayor
and Alderman.
The use and possession of the stairway
being by permission was not adverse, and
therefore can give him no right by pre-
scriptiOn or lapse of time. Moreover the
of time i'm this ease has not been long
enough to raise the bar; and. besides, the
of the statute Of limitations docs not
run against the Government.
1t is unnecessary to consider whether
and to what extent the city can by con-
grant to an individual a portion of a
street, or whether the Mayor and
Aldermen can surrender or abandon the
easement of way in part of a street
so as to exclude the public from the right
to the unobstructed use of such street, as
was no such contract or surrender
in this case.
The obstruction of a sidewalk of a pub
lie street is q common nuisance. An or
of the city TO abate such nuis-
lnce, or to infict on the person causing
L a pecuniary penalty for its existence or
continuance is reasonable and proper, and
ought TO be enforced by the courts. II
nay be admitted that the obstruction in
he present case was not a nuisance, and
punishable by penalty at the instance of
he city, so slong as the permission re-
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