Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1899-06-22

Inc oupreiuo Oourb OF Delaware,
Tuesday, in an opinion delivered by
Judge Grubb, affirmed the validity OF
the Municipal Court of the city of
Wilmington.
The case from which the decision
resulted was an action for assault and
battery brought against Samuel d.
Forbes, Maria o. Hartmann and Con.
stable James f.. Porter. growing out
OF their alleged Illegal proceedings in
the course of distraint for rent.
Judge Ball imposed sentence Of fine
and costs, whereupon an appeal was
taken to the Superior Court, on the
ground that tine Municipal Court had
no Jurisdiction in the matter, it having
been abolished by the new Consti
tuition. The Superior Court affirmed
the Judgment OF the Municipal Court,
and then recourse was had to the
Supreme Court. IT, IS
The full text Of Judge Grubb,s
opinion is as follows:
/. The Municipal Court for the city
Of Wilmington, being an inferior court
Of statutory creation within the mean.
ing Of section 30. article of the
present Constitution, the said court,
its Judge, and its jurisdiction of the
offences formerly enumerated In section
To- article Of the, late Constitution
and now still enumerated In said
section 30, being lawfully established
and legally existing at the time the
present Constitution took effect, were,
in contemplation OF said section 80
as properly construed in connection
with section j Of article and other
pertinent provisions of the existing
Constitution and its schedule, con.
tinued under and by virtue Of section
IS of said schedule =. 10
2. Accordingly, after the present
Constitution took effect, said court
continued to have Jurisdiction of such
fences as were formerly enumerated
in section Is, article of the late, and
are now still enumerated in section 80,
article A Of the existing Constitution.
3. Under said section 30 Of article 4,
construed as aforesaid, the General
Assembly may, in addition to said
offences, give, said court jurisdiction
Of such other offences as are now
enumerated in said section 90 or as
shall hereafter be prescribed by the
Legislature in accordance. Herewith.
4. Section 80, article of the present
Constitution does not require that, the
judge Of said Municipal Court who
was lawfully holding his Office when
said Constitution took effect, should
thereupon have been reappointed By
the governor and confirmed by the
tinue in the exercise of the courts
aforesaid jurisdiction.
Grubb, j., delivering the opinion Of
the court:
10 the case before us the plaintiffs
in error seek to have reversed judg-
ment of the Superior Court for New
Castle county, affirming on certiofari
judgment of the Municipal Court for
the city OF Wilmington, rendered
February Goth; 1898, against the plain
titfs in error who were therein CON
victed Of assault and battery and there
upon sentenced.
The said plaintiffs claim that said
Judgment of aflirmance was erroneous,
upon the following grounds: First, for
that said Municipal Court was without
Jurisdiction of said offence because 1t
was abolished on June 10th, 1897, the
time when the present Constitution
took effect, by force Of section 0 Of
the schedule, and Of other provisions
of said Constitution: second, for that,
even il said Municipal Court was not
abolished at said time yet its Judge
was not thereafter legally constituted
and qualified, and therefore could not
lawfully exercise its jurisdiction be-
cause he was not thereafter reap
pointed and confirmed by the Senate
as required by section 80 article
of the present Constitution. N
The determination of the questions
presented by these grounds of error
necessitates the consideration of the
late Constitution of 1881 and the
present Constitution of 1897, and OF
the statutes enacted and existing in
conformity Herewith. By both section
l of article G Of the late Constitution
and section /, article of the present
one, it clearly appears that the Judicial
power was vested in two classes oi
courts, viz. those directly created and
named by the Constitution itself, and
those whose creation and continuance
were left to- the Legislative wisdom
and discretion. The former may there,
fore be conveniently described as Con.
stitutional courts and thu latter az
statutory courts.
By reference to section 10 of article {
Of the late Constitution, and to section
80, article \ of the present Constitu,
tiop, 1t will be found that jurisdiction
of certain designated offences, either
with or without Indictment by grand
jury, or trial by petit Jury, may be
given by the General Assembly to, and
exercised by inferior courts Of statutory
creation.
Under and by virtue of this constitu'
tional provision contained in section
Is, article 6 of the late Constitution,
the statute of 1888, chapter 207, Vol
XVII, Laws OF Delaware, and the acts
amendatory thereof, created the sale
Municipal Court for the city of VIII
mipgton, authorized the appointment
of its judge by the governor and EN-
powered il to try, among other matters,
and upon information and without
indictment and trial by jury, the
offence, now In question, of assault
and battery, and other offences ther
enumerated in said section 10 and nov
still enumerated in section 30 of articl,
of the present Constitution.
That said court was thus lawfully
created, organized and empowered ane
both il and its Judge, and its sale
jurisdiction legally existing on Jun,
10th 1897, the time at which thi
present Constitution took effect, is no
disputed but, rs we understand, con
coded by the counsel on both sides IL
the case now before us.
The real question now in controvers,
Is whether or not the said Municipa
Court. its Judge. and its jurisdiction
OF assault. and battery and the other Of
fences specifically enumerated theI
in section Is, article of the late, ant
still In section 80, article Of tn,
present Constellation. thus existipg a