This suit commenced in the Mayor’s Court of the city of San Antonio, in which Court there was a judgment against appellant, for one hundred dollars and cost.; and in default of payment defendant was sentenced to be imprisoned for sixty days, for a breach of an ordinance of the Corporation. The appellant paid the one hundred dollars to avoid going to jail, and applied for and obtained a certiorari by which the case was taken to the District Court. In the District Court, a jury being waived, the Court affirmed the judgment of the Mayor’s Court, and Smith appealed.
The ordinance under which the appellant was tried in the Mayor’s Court, is as follows : “ Be it ordained, that any per-
“ son owning or renting or occupying any property within the “limits of this city, who shall permit any gambling within their “ premises, shall be liable to a fine of not less than ten dollars, “ nor more than one hundred, for each and every offence ; and *646“ in default of payment of said fine, shall be imprisoned not. "less than twenty nor more than sixty days ; said fine to be- “ recovered in a summary manner before the Mayor.
“ That any person found betting or interested in any game “ of farro, monte or other game that comes within the gener- “ ally understood meaning of games of chance, shall be deemed “ equally guilty with the owner or occupier of the premises,. “ and shall be subject to a like penalty.”
The penalty, it is seen, is in the alternative; it may be satisfied by the payment of the fine, or undergoing the imprisonment. By the 19th Section of the 4th Art. of the Constitution it is provided : “ In all cases where Justices of the Peace or other “ judicial officers of inferior tribunals shall have jurisdiction “in the trial of causes, where the penalty for the violation of' “ a law is fine or imprisonment, (except in cases of contempt) “ the accused shall have the right of the trial by jury.”
Under this Section of the Constitution, we decided at the-present Term in the case of Burns v. The Town of LaGrarige, that the ordinance of the Town Council, imposing a fine without a trial by jury, was unconstitutional and void. The difference between that case and this now before us is, that in that, the accused claimed the right of a trial by jury, in this the accused did not claim the right, but only protested against the-action of the Mayor. Wo have given due consideration to this difference in the two cases, and we believe it ought not to-change our judgment, and make it different in the two cases ;• that as the ordinance under which the Mayor acted, gave him no authority to impannel a jury, it would have been vain and useless to have demanded it from him. The ordinance, so far-as it authorizes the Mayor to fine and imprison without giving authority to impannel a jury, we regard as repugnant to the Constitution and void. The District Court ought therefore to-have given judgment in favor of the accused.
We are fully impressed with the necessity of vigorous and stringent laws for the suppression of gambling, a vice that as*647sociales with it, and drags in its train, almost every conceivable crime ; yet, as the guardians of the Constitutional rights of the citizen, no matter what his crime may be, we cannot permit any consideration of policy, for a moment to impair our judgment. The judgment of the District Court is reversed, and the cause remanded to the District Court.
Reversed and remanded.