Ex parte State ex rel. City of Birmingham

51 So. 309, 164 Ala. 576, 1909 Ala. LEXIS 258

• Court: Supreme Court of Alabama
• Decided: June 30, 1909
• Status: Published

Opinion

DOWDELL, C. J.

This is an application for a writ of mandamus to compel the judge of the criminal court of Jefferson county, Ala., to have a certain cause, described in the petition, pending in said criminal court on appeal from the police court of Birmingham, wherein the city of Birmingham is plaintiff and one Otto Schunck (charged with the. violation of a city ordinance) is defendant, placed upon the nonjury docket of said criminal court of Jefferson county, and to proceed to the trial of the same by the court without the intervention of a jury.

The question presented is Avhether the said Otto Schunck is entitled to a trial by jury. The precise question Ave here have was presented, considered, and determined in the recent case of Costello v. Feagin, 162 Ala. 191, 50 South. 134. Under the authority of that case the defendant, Otto Schunck, is not entitled to a jury trial on the charge of a violation of a city ordinance, and the duty rests upon the criminal court to proceed to his trial without a jury.

The question of the validity of the ordinance alleged to have been violated cannot be inquired into on this proceeding for a mandamus. The proper time to raise such question ivill he upon the trial of the cause for the violation of the ordinance.

The peremptory writ of mandamus, as prayed, will be aivarded.

Mandamus aivarded.

Anderson, McClellan, and Sayre, JJ., concur.