Bigby v. City of Tyler

44 Tex. 351

Opinion

Roberts, Chief Justice.

The prisoners have been tried and convicted before the mayor of the city of Tyler for an offense prescribed by the code, to wit, for keeping a house for public prostitution, fined fifty dollars each and costs, and ordered “ to remain in the hands of the city marshal until the fine and costs are paid.” Their discharge is asked upon the ground that the judgment of conviction for said offense is a nullity.

It is proposed to do hut little more than to state our conclusions.

The fine imposed under the city ordinance for this offense is an amount not exceeding one hundred dollars.

The Code of Criminal Procedure made mayors of cities magistrates, and formerly they exercised the powers of justices of the peace in the trial of criminal offenses. (Paschal’s Dig., arts. 2519, 2532.)

By the code originally they were expressly given jurisdiction to try cases of vagrants and disorderly persons. (Paschal’s Dig., art. 2528.)

An amendment of the code places the penalty above the jurisdiction of a justice of the peace for a final trial, the fine being not less than one and not more than five hundred dollars. (Paschal’s Dig., art. 2029.)

The Constitution of 1869 provides for only five justices of the peace in each county, and makes no reference to a mayor. This court has held that a mayor of a city, since the adoption of that Constitution, is not a justice of the peace, and that his authority is limited to such grant of power as maybe contained in the charter of incorporation under which he acts, and to such laws as may relate to him as mayor and not as a justice of the peace, as was formerly the case.

We find in the act of incorporation of the city of Tyler no authority granted to the mayor to try this offense and render a final judgment, as was done in this case. It is a case properly cognizable by the Criminal Court of the city of Tyler, and the defendants may he proceeded against as in any other case of which that court has jurisdiction.

The prisoners must therefore he discharged and judgment entered accordingly.

Relators discharged.