Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-08-20

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U. S., 3T6. III, in view Of the prohibit
tory words OF the Constitution, that
no State shall deprive any person of
life, liberty or property without due
process Of law" the Legislature of the
State of Delaware, transcended its
power by giving to the alderman the
Jurisdiction described in the foregoing
section OF the charter, it would follow
as matter OF course that the alder
man was without authority to try and
convict tho petitioner and that the
whole proceeding before him was void.
But what is "due process of law,'' Ia
as difficult of precise and accurate
definition as it would be to mark
with certainty the boundaries of what
is known as 'the police power" of
the State. in tho exercise of which
conflicts between national and State
authorities have frequently arisen.
The books are full Of cases which, in
some instances are irreconeiable and
in othors are governed by the funda-
mental law of the respective States.
that due process OF law" signifies a
right of trial by jury in every case. when
a person charged with any offense may
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fine or be imprisoned or both. But
this is an erroneous conception of the
law. A distinction has always been
observed between crimes for which the
offender must be tried by jury and
petty .otfenses which are punishable by
a moderate fine or Imprisonment for
short periods, the FORMER being viola
tions of the general law, which ia hind
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ter are infractiuns of the municipal or
ticular communities. Thus it is said
by law writer OF acknowledged ro-
pute, that: "Offences against ordi
nances (of city, properly made in
virtue Of the implied or incidental
power of the corporation, or in the exer-
else OF its legitimate police authority
for the preservation of the peace, good
order, safety and health of the place,
and which relate to minor acts and
matters not embraced In the public
criminal statutes of the State, are not
usually or properly regarded as crimi-
nal and hence need not necessarily be
prosecuted by Indictment or tried by
jury Dillon's Munc. Corp. 424.
The same learned writer referring to
the 14th amendment and its effect upon
the jurisdiction municipal courts
further remarks, I'D. n. 1867: "One
of the questions which most frequently
arises is whether the defendant is on
titled TO trial by jury, and the cases
on this subject cannot all be recon-
ciled. Violations OF municipal y-laws
proper, such as fall within the restrie-
tion of municipal police regulations, as
for example, concerning markets,
strpets, water works, city offices, &C.,
and which relate TO acts and omissions
that are not embraced in the general
criminal legislation OF the State, the
legislature may authorize to be prose.
cuted in summary manner, by and
In rthe name of -tae corporation, and
need not provide for trial by jury.
In England violations of municipal by
laws, where the penalty is fine. or
by authority OF Parliament a fine and
imprisonment have always been prose.
cuted in a summary manner, although
Magma Charta seizures the right OF trial
by jury" Every householder, residing
within an incorporated town or city, is
familiar with regulations and ordi-
nances which require of him the por-
formance OF certain acts and the avoid
ance of others, and for the neglect or
disobedience Of which, he will be liza
Bile to inconyenient penalties. The
catalogue of such rules extends from a
failure to clean the sidewalks of snow,
to fast driving of vehicles through the
streets, and the erection of wooden
structures within the fire limits Again,
there are the offences of being drunk
on the public streets, of yagabondage, of
begging, &c. !; but no one ever heard
that such offenders might not be fined
and imprisoned. within reasonable
limits as TO amount and time, by a
municipal magistrate without the in
tervention of a jury.
By section 15, of the Constitution Of
Delaware, the General Assembly may
by law give to any inferior courts by
them, to be established, or to one or
more Justices OF tho peace jurisdiction
of the criminal matters following, that
is 10 say, assaults and batteries, keep
ing without license public house Of
entertainment, retailing or selling with
out license spurious liquors, disturbing
campmeetings, or other meetings held
for religious worship, nuisances, &c.
The General Assembly may also by law
regulate the 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 /;
the matters within this section shall
be and the same are excepted and OK
cluded from the provisions Of the Con-
stitution, that "no person shall for
any indictable oifense be proceeded
against criminally by Information, and
also from the provisions of the Con-
stitution concerning trial by jury. +"
The illegal obstruction of public
street is nuisance at common law, and
by section 18. of chapter 1877, Revised
Statutes of Delaware, assaults and bat
tories, nuisances and all other offenHes
indictable at common law, and not
specially provided for by statutes, shall
be deemed misdemeanors, and shallsbe
punished by fine and imprisonment, or
either, according to the. discretion of
the court.
When law is assaulted on the ground
of unconstitutionality, the objection
must be made SO clear that the court
cannot hesitate however reluctant to
take the responsibility, to declare it
void; hut il it be at all doubtful and
uncertain whether the statute when
fairly construed and executed, comes
within tho constitutional inhibition,
no court or judge should presume to
attempt to undue the work of the
Legislature. 1t is sufficient for meatD
say that l am by no means convinced
that section II of the Dover charter, in
it's operation, has deprived the petit
tioner of his liberty without due Dro-