The opinion
Same Case — Ok a Re-hearing.
Vookhies, J.
The defendant’s counsel seem to have so far misunderstood the opinion of the court, as to state, in their brief on a re-hearing, “ that no other reason is assigned by the court for the conclusion to which it came, unless, indeed, it be one founded upon the inconvenience of trying cases before Recorders with juries.”
A simple inspection of the two opinions delivered in this case, will convince any one that this inconvenience was considered by the court merely as one of the reasons which prompted the Convention in the adoption of Article 124 of the Constitution.
*196 The right of the Recorders to try cases summarily, does not, we think, arise ex necessitate rei, but is derived under the provisions of the organic law.
In the case of the City of New Orleans v. Eliza Costello, the court had said : “ The third section of the ordinance authorizing a prosecution before the Recorder, does not violate Article one hundred and three of the Constitution, which requires prosecutions to bo by information or indictment, because the same Constitution expressly authorizes the Legislature to vest.in the city Recorders such criminal jurisdiction as may be necessary for the punishment of minor offences and crimes, and as the police and good order of the city may require. Constitution, 124.” 14 An. 37.
On that occasion the Articles 103 and 124 of the organic law had been considered, with reference to each other ; and the result of the inquiry was that some causes might be tried summarily before the Recorders of New Orleans. In the case under consideration, we went more lengthily in the investigation of the constitutional question, raised by the appellant; and considered, as we now consider, that we had given, for our conclusions, reasons derived from the organic law itself, and not, as stated by counsel, from the inconvenience to which a contrary decision would lead.
It was stated in our former opinion, that the Recorders, previous to the year 1845, had exercised summary criminal jurisdiction. “ Now,” says the defendant’s counsel, “ we have no hesitation in saying, with entire respect to the court, that the supposed fact upon which the reasoning of the court rests, is no fact at all. One of the undersigned was Attorney General of the State for some years, and, up to February, 1853, and during his term of service, certainly no such cases occurred; and he never, before 1845, ever heard of any such cases as those referred to by the Chief Justice and the court. We make this statement with every means of knowing what has occurred in New Orleans in relation to this matter, and are quite sure that no member of the bar of this city will dispute the correctness of what we say.”
This contradiction of a statement made in the decision of the cause, naturally drew our attention. Pains were taken to ascertain how the matter stood ; and the following document will, it is hoped, set it at rest:
“ State of Louisiana, Parish of Orleans.
“ I, the undersigned authority, do hereby certify that from an inspection of the books of my office, as early as the year eighteen hundred and thirty-eight, it appears that the Recorder of this district of the city of New Orleans, has habitually exorcised summary criminal jurisdiction by the infliction of fines and imprisonment, in a variety of cases, including even the offence of selling liquors to slaves ; and that the entries on the books of the office during that period, show this fact.
“ Given under my hand, this 9th da.y of April, A. D. 1860.
“ J. Cluzart, Assistant Clerk.
But it is objected, that when Article 124 of the Constitution came up in the Convention, an amendment offered, with the view of dispensing with the trial by jury, was voted down.
We are referred to the following extract from the journal:
“ Mr. Collins then moved to insert at the end of the Article, the following words : and in case of misdemeanors, the trial by jury may be dispensed with, provided the accused consents.......
*197 “ The question being then on the amendment offered by Mr. Collins, the President put the motion on its adoption, which was lost.
“ On motion, the Article was adopted without amendment.”
Two things will be noticed with respect to this amendment. In the first place, the object of the Article was to enable the municipal Judges to try summarily those minor offences, which relate to the police and good government of the city ; whilst the amendment had in view misdemeanors in general. And, in the second place, the amendment would have defeated the summary trial, by leaving this matter at the option of the accused. Hence the rejection of the amendment.
It is an error to suppose that, under this view of the question, the Legislature might authorize the city Recorders to try felonies in a summary manner. A felony is not a minor offence — and still less a minor offence, relating to the police of the city. The 124th Article of the Constitution refers to a particular class of misdemeanors, among which must be enumerated the traffic of spirituous and intoxicating liquors with slaves, as affecting the police and good government of the city.
The last objection to be met is, that the Article of the State Constitution as interpreted by this court, is in eonilict with the ordinance of Congress admitting Louisiana in the Union.
Congress did require of the Territory of Orleans, a Constitution guaranteeing the right of trial by jury in all criminal cases. But it is a novel doctrine, that a mere Act of Congress can bind a sovereign State of this Union for all time to come, with regard to the administration of her criminal justice.
It is, therefore, ordered, that our former opinion, in this cause, be affirmed.
Merrick, O. J., I adhere to my former opinion.