The defendant was tried, found guilty and sentenced, under the provisions of “ an Act for the prevention and punishment of selling liquor to slaves, in the parish of Orleans,” approved March 17, 1859. Session Acts, p. 168.
His defence is, that this statute is unconstitutional, because it denies tho accused the right to be tried by an impartial jury of the vicinage, and dispenses with the filing of an indictment or information, in violation of the 103d Article of the State Constitution, requiring that: “ Prosecutions shall be by indictment or information. The accused shall have a speedy public trial by an impartial jury of the vicinage.” Const. 1852, Art. 103.
*191This case was tried before one of the Recorders of the city of New Orleans, assisted by a jury of three slave-holders, in conformity with the 3d section of the statute in question. This section reads as follows :
“ That the Recorders of the city of New Orleans,, and the Justices of the Peace in any part of the parish outside of the limits of said city, are hereby granted full power and authority to take cognizance of all prosecutions under this Act, and enforce the provisions of the same; that upon the arrest of any party or parties violating this Act, they, together with a jury of three slaveholders, summoned by them, shall pass a final verdict ,and enforce the penalties as aforesaid.”
The two preceding sections define the offence, provide for the arrest of the accused, and lay down rules of evidence peculiar to this class of misdemeanors. The fourth and last section gives effect to the Act from and afterithe date of its passage.
The Legislature had the right to confer upon the Recorder’s^court, the criminal jurisdiction requisite to try the offence charged toRhe accused. This authority is derived from the organic law itself. The Constitution provides:
Art. 61. “ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may from time to time order and establish, and in Justices of the Peace.”
Art. 78, (after defining the civil jurisdictions of Justices of the Peace,) declares : “ They shall- have such criminal jurisdiction as shall be provided by law.”
Art. 124. “ The Mayors, Recorders, Aldermen and Assistant-Aldermen, shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police aud good order of said city may require.”
The question then presents itself, whether the jurisdiction of the Recorder being conceded, the defendant was entitled to be prosecuted in that court, by indictment or information, and tried by a jury of the vicinage, within the terms of Article 103 of the organic law. It must be solved in the negative.
The Article 103, which lays down the general rule, and is, besides, merely declaratory of the common law on the subject, must yield to Article 124, which provides specially, by way of exception, for the trial of minor offences by the Recorders of the city of New Orleans, acting under authority conferred by the Legislature. Such misdemeanors, as relate to the police and good order of the city, could not possibly be disposed of, were it necessary to proceed with all the solemnities of a jury trial, in the ordinary way. Hence the adoption of Article 124 of the Constitution of 1852, a reenactment of Article 128 of the previous Constitution.
It is worthy of notice that heretofore, in the discharge of their functions as criminal courts, the Recorders have proceeded in the summary way, without the assistance of the prosecuting- attorney, and that they have never been authorized toempannel and summon juries; — a fact which certainly did not escape the attention of the conventions which framed the two last Constitutions. They must also have borne in mind that, in England, the Magna Charta provided expressly that no one should be tried, imprisoned and punished “ nisi per legale judicium parium suorum, vel per legem term; ” and yet, that Justices of the Peace were authorized to try certain offenders summarily. Upon this subject Blackstone says: “• Ry a *192summary proceeding I mean principally such as is directed by several acts of Parliament, (for the common law is a stranger to it, unless in the case of con-tempts,) for the conviction of offenders, and the infliction of certain penalties createi] by those acts of Parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offence.” IT Blackstone’s Com., p. 279.
The object of conferring jurisdiction over minor offences to the Recorders and Justices of the Peace, — whoso courts are of limited jurisdiction, — is that such cases may be disposed of summarily and with despatch. It is for this reason that their cognizance is transferred from courts, so constituted and organized as to admit of a regular trial by a jury of the vicinage, and of prosecution by indictment or information, — to other courts which have never been so constituted and organized.
The Legislature might have empowered the Recorders and Justices of the Peace to try the accused without the intervention of any jury; it is not conceived in what respect he lias been injured, because the Recorder who tried this case deliberated and voted with the three slave-holders who sat as jurors. The Act certainly authorized him to do so ; nor is there, apart from the 103d Article of the Constitution, any other provision in that instrument, limiting or curtailing the power of the Legislature to fix the number of jurors that will sit in any given case, or to declare what shall be their qualifications. State v. Jones, 8 R. 582; State v. Mullen, 14 An.
The Article 103, guaranteeing the right of trial by jury, is the general rule, to which the Article 124 forms an exception: the former proclaims a rightthe other recognizes a class of cases to which that right does not extend. In other words, the Art. 108 has no application whatever to that class of offences which are to be tried summarily, without the intervention of an impartial jury of the vicinage.
Is it true that the Article 124, under the sanction of which was passed the statute in question, contemplates that the Recorders, Mayors, Aldermen, and Assistant Aldermen shall try the cases within their jurisdiction by themselves, under pain of nullity? The Constitution nowhere says so. On the other hand, the Legislature is vested with absolute right of legislation, except when restricted by the organic law. There is such a restriction with regard to jury trials, as a general rule; but this restriction, as we have seen, does not hold when the offence or crime falls within the jurisdiction of Recorders ; the Legislature, consequently, can organize the courts of these municipal Judges, for the summary disposition of their criminal business, on such a plan as meets its better judgment. In doing so, they may authorize these officers to act as well by themselves, as with the assistance of a jury, the formation of which is entirely left at the will of the lawgiver.
As the mode of trial before the Mayor and Recorders has none of the forms and solemnities of an ordinary trial by jury, and indeed, does not fall under the operation of the constitutional clause, with respect to an impartial trial by a jury of the vicinage, wo deem it unnecessary to express any opinion on the question as to the number of jurors required to constitute that body, either at common law, or by the Constitution of this State. There is no necessity, therefore, *193to determino whether, or not, it be sacramental to have twelve men in the Petit Jury. It has lately been decided, however, with regard to the Grand Jury, that, although the statute requires sixteen jurors to be drawn and sworn, yet, that this number is not sacramental. State v. Delia Swift, alias Bridget Fury, 14 An. 827.
It is, therefore, ordered, adjudged and decreed, that the judgment of the inferior Court be affirmed, with costs.