Lewis, P.,
delivered the opinion of the court.
The plaintiff' in error, Mary Miller, ivas tried before a justice of the peace of Rockingham county, and sentenced to pay a fine of $100 and to be confined in jail six months, for keeping a house of ill-fame. From this judgment of the justice she appealed to the county court, and after the docketing of the appeal in that court, and before any further proceedings in the case were had, she moved to quash the warrant and to be discharged from custody, on the ground that the justice had no jurisdiction of the case, except that of an examining magistrate merely. But the motion ivas overruled, to which ruling she excepted.
The case was then tried by a jury, which returned a verdict of guilty, fixing the punishment at one month and twenty days’ confinement in jail and the payment of a fine of $17. A motion for a new trial was made and overruled, and judgment pronounced in accordance with the verdict, which judgment having been afterwards affirmed (“ pro forma,” as the record states,) by the circuit court, a writ of error was awarded by one of the judges of this court.
The statutory punishment for the offence in question is confinement in jail not exceeding one year, and a fine not exceeding $200. Code, sec. 3790. And by an act of Assembly approved March 14th, 1878, uoav carried into section 4106 of the Code, justices of the peace and police justices are given jurisdiction 0Arer the offence concurrent Avitli that of the county and corporation courts. Section 4107, however, gi\Tes the ■accused, in case of a conviction, the right of appeal to the county, corporation, or hustings court, and provides that, unless let to bail, he shall be committed to jail by the justice [620]*620until the next term of such court. And by section 4108 it is provided that the accused shall be entitled to a trial by jury in the same manner as if he had been indicted for the offence in the appellate court.
It is contended that section 4106 of the Code, in so far as it gives jurisdiction to a justice of the peace to try a case like the present, is void, because it denies to the accused the constitutional right of trial by jury; in other words, that it is repugnant to that clause of the Constitution of Virginia which ordains that “ in all capital or criminal prosecutions a man hath the right to demand the cause and nature of his accusation * * and to a speedy trial by an impartial jury.” Art. I., sec. 10.
It is undoubtedly a true rule in the construction of state statutes that the legislature possesses all legislative power not prohibited by the fundamental law. It is also true that every legislative act is presumed to be valid. But where there is a clear incompatibility between the constitution and the act, the latter is invalid, and ought to be so declared, for the constitution is the paramount, law, binding alike upon all the departments of the government.'
Is there, then, such incompatibility between the act in question, so far as it relates to a case like the present, and the constitution ? 'We are of opinion that there is.
The guarantee of the constitution relied on is plain and unambiguous. It declares in unmistakable terms that in all criminal prosecutions the accused hath the right to a speedy trial by an impartial jury. Language could hardly-be plainer or less liable to misconstruction.
j',_ It must be conceded, however, notwithstanding the broad language of the constitution, that there are many petit offences against statutes or municipal ordinances, such as Sabbath-breaking, drunkenness, vagrancy, and a vast variety of others, which are triable without a jury, because they were so triable when the constitution was adopted, and the right of [621]*621trial by jury whicli is secured is the right as it existed at the time the constitution was adopted.^ This was decided in the recent case of Ex-parte Marx, 86 Va. 40, and such is the settled law on the subject. Byers v. Commonwealth, 42 Pa. St. 89; Work v. State, 2 Ohio St. 296; Inwood v. State, 42 Ind. 186; Trigally v. Mayor of Memphis, 6 Cold. 382; State v. Glenn, 54 Md. 572; Natal v. Louisiana, 139 U. S. 621; 4 Bl. Comm. 280 ; 1 Steph. Hist. Crim. Law, 122; 2 Dill. Munc. Corp. (4th Ed.) § 439.
But the offence of keeping a bawdy house is not of that class. Such an offence is a public nuisance, and therefore indictable at common law, 1 Russ. Crimes, 298. Hawkins, a writer of high repute, speaks of it as an offence of a gross nature, punishable at common law, not only with line and imprisonment, but also with such infamous punishment as to the court in its discretion shall seem proper. 1 Hawk. P. C. ch. 74.
Accordingly, there is no authority, of which we are aware, holding that the offence is, or that, at any time in our juridical history it. has ever been, triable without a jury; nor was there ever any statute in Virginia authorizing it to be tried by a justice of the peace prior to the passage of the act of March 14th, 1878, above mentioned, which was long subsequent to the adoption of our present constitution; and it is needless to say that it is not- competent for the legislature, by classifying it, as is done in section 4106 of the Code, with offences which are so triable, to deprive a person accused of the offence of the benefit of a trial by jury.
I-n Warren v. People, 3 Park. C. C. 544, it swas held that a statute of Hew York, which subjected the keepers of bawdy houses to summary conviction before a justice of the peace, was unconstitutional and void, because it deprived the accused of a trial by jury.
“ To allow the legislature,” said the court, “ to except from the operation of a constitutional provision by direct enactment, a matter clearly falling within its meaning, would sane[622]*622tion a fraud upon its organic law, and might, in the end, destroy its obligation.” And in Slaughter v. People, 2 Doug. (Mich.), 334, it was decided that a summary conviction of the accused for keeping a bawdy house was invalid, because inconsistent with the Constitution of Michigan, which declares that “ no person shall be held to answer for a criminal offence unless on a presentment of a grand jury.”
That the act in question ivas ■well intended — that is to say, to provide a speedy and cheaper mode of prosecuting, among other misdemeanors, offences against morality and decency— is obvious. But its validity is not to be determined with reference to any consideration of that sort. The constitution, we repeat, is the supreme law, and the right of trial by jury which it secures, which is co-eval with the English government itself, and which is more than once insisted on in Magna O harta as the chief bulwark of English liberty, is not to be sacrificed or impaired in the interest of economy. Ear better amend the constitution than to violate it, or to sanction its violation, however good may have been the motives of those by whom the act was passed.
The case at bar is not distinguishable in principle from Callon v. Wilson, 127 U. S. 540.
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Lewis, P.,
delivered the opinion of the court.
The plaintiff' in error, Mary Miller, ivas tried before a justice of the peace of Rockingham county, and sentenced to pay a fine of $100 and to be confined in jail six months, for keeping a house of ill-fame. From this judgment of the justice she appealed to the county court, and after the docketing of the appeal in that court, and before any further proceedings in the case were had, she moved to quash the warrant and to be discharged from custody, on the ground that the justice had no jurisdiction of the case, except that of an examining magistrate merely. But the motion ivas overruled, to which ruling she excepted.
The case was then tried by a jury, which returned a verdict of guilty, fixing the punishment at one month and twenty days’ confinement in jail and the payment of a fine of $17. A motion for a new trial was made and overruled, and judgment pronounced in accordance with the verdict, which judgment having been afterwards affirmed (“ pro forma,” as the record states,) by the circuit court, a writ of error was awarded by one of the judges of this court.
The statutory punishment for the offence in question is confinement in jail not exceeding one year, and a fine not exceeding $200. Code, sec. 3790. And by an act of Assembly approved March 14th, 1878, uoav carried into section 4106 of the Code, justices of the peace and police justices are given jurisdiction 0Arer the offence concurrent Avitli that of the county and corporation courts. Section 4107, however, gi\Tes the ■accused, in case of a conviction, the right of appeal to the county, corporation, or hustings court, and provides that, unless let to bail, he shall be committed to jail by the justice [620]*620until the next term of such court. And by section 4108 it is provided that the accused shall be entitled to a trial by jury in the same manner as if he had been indicted for the offence in the appellate court.
It is contended that section 4106 of the Code, in so far as it gives jurisdiction to a justice of the peace to try a case like the present, is void, because it denies to the accused the constitutional right of trial by jury; in other words, that it is repugnant to that clause of the Constitution of Virginia which ordains that “ in all capital or criminal prosecutions a man hath the right to demand the cause and nature of his accusation * * and to a speedy trial by an impartial jury.” Art. I., sec. 10.
It is undoubtedly a true rule in the construction of state statutes that the legislature possesses all legislative power not prohibited by the fundamental law. It is also true that every legislative act is presumed to be valid. But where there is a clear incompatibility between the constitution and the act, the latter is invalid, and ought to be so declared, for the constitution is the paramount, law, binding alike upon all the departments of the government.'
Is there, then, such incompatibility between the act in question, so far as it relates to a case like the present, and the constitution ? 'We are of opinion that there is.
The guarantee of the constitution relied on is plain and unambiguous. It declares in unmistakable terms that in all criminal prosecutions the accused hath the right to a speedy trial by an impartial jury. Language could hardly-be plainer or less liable to misconstruction.
j',_ It must be conceded, however, notwithstanding the broad language of the constitution, that there are many petit offences against statutes or municipal ordinances, such as Sabbath-breaking, drunkenness, vagrancy, and a vast variety of others, which are triable without a jury, because they were so triable when the constitution was adopted, and the right of [621]*621trial by jury whicli is secured is the right as it existed at the time the constitution was adopted.^ This was decided in the recent case of Ex-parte Marx, 86 Va. 40, and such is the settled law on the subject. Byers v. Commonwealth, 42 Pa. St. 89; Work v. State, 2 Ohio St. 296; Inwood v. State, 42 Ind. 186; Trigally v. Mayor of Memphis, 6 Cold. 382; State v. Glenn, 54 Md. 572; Natal v. Louisiana, 139 U. S. 621; 4 Bl. Comm. 280 ; 1 Steph. Hist. Crim. Law, 122; 2 Dill. Munc. Corp. (4th Ed.) § 439.
But the offence of keeping a bawdy house is not of that class. Such an offence is a public nuisance, and therefore indictable at common law, 1 Russ. Crimes, 298. Hawkins, a writer of high repute, speaks of it as an offence of a gross nature, punishable at common law, not only with line and imprisonment, but also with such infamous punishment as to the court in its discretion shall seem proper. 1 Hawk. P. C. ch. 74.
Accordingly, there is no authority, of which we are aware, holding that the offence is, or that, at any time in our juridical history it. has ever been, triable without a jury; nor was there ever any statute in Virginia authorizing it to be tried by a justice of the peace prior to the passage of the act of March 14th, 1878, above mentioned, which was long subsequent to the adoption of our present constitution; and it is needless to say that it is not- competent for the legislature, by classifying it, as is done in section 4106 of the Code, with offences which are so triable, to deprive a person accused of the offence of the benefit of a trial by jury.
I-n Warren v. People, 3 Park. C. C. 544, it swas held that a statute of Hew York, which subjected the keepers of bawdy houses to summary conviction before a justice of the peace, was unconstitutional and void, because it deprived the accused of a trial by jury.
“ To allow the legislature,” said the court, “ to except from the operation of a constitutional provision by direct enactment, a matter clearly falling within its meaning, would sane[622]*622tion a fraud upon its organic law, and might, in the end, destroy its obligation.” And in Slaughter v. People, 2 Doug. (Mich.), 334, it was decided that a summary conviction of the accused for keeping a bawdy house was invalid, because inconsistent with the Constitution of Michigan, which declares that “ no person shall be held to answer for a criminal offence unless on a presentment of a grand jury.”
That the act in question ivas ■well intended — that is to say, to provide a speedy and cheaper mode of prosecuting, among other misdemeanors, offences against morality and decency— is obvious. But its validity is not to be determined with reference to any consideration of that sort. The constitution, we repeat, is the supreme law, and the right of trial by jury which it secures, which is co-eval with the English government itself, and which is more than once insisted on in Magna O harta as the chief bulwark of English liberty, is not to be sacrificed or impaired in the interest of economy. Ear better amend the constitution than to violate it, or to sanction its violation, however good may have been the motives of those by whom the act was passed.
The case at bar is not distinguishable in principle from Callon v. Wilson, 127 U. S. 540. In that case the appellant was summarily convicted and fined $25, in the police court of Washington, for a conspiracy, under-an act of Congress, which gave a party convicted an unobstructed right of appeal to, and a trial by jury in, a higher court. It also provided that the appeal should be tried “as though the ease had originated,” in the latter court. The act ivas assailed as being repugnant to the Constitution of the United States, which, in terms very similar to the language of our state constitution, guarantees the right of trial by jury in all criminal prosecutions, and this contention was sustained. The Supreme Court unanimously affirmed these propositions — viz.: (1) That the offence charged against the appellant ivas not of a class of petit offences which, according to the common law, are triable without a jury; (2) [623]*623that the police court, in trying the case, acted not as an examining court merely, hut as a trial court in the fullest sense of those words; and (3) that the provision giving a right of appeal and a jury trial in the appellate court did not relieve the statute of its repugnancy to the constitution.
Upon the latter point the cou^t, after a review of the authorities, including Jones v. Robbins, 8 Gray (Mass.); 329, stated its conclusion in the following lánguage :
“ Except in that class or grade of offences called petit offences, which, according to the common law, may he proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by, or under the authority of the United tftates, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court he is put on trial for the offence charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury in an appellate court after he has been once fully tried otherwise than bv a jury iu the court of original jurisdiction, and sentenced to pay a fine, or he imprisoned for not paying it, does not satisfy the requirements of the constitution.”
The guarantee of the Federal Constitution, it is true, applies only to proceedings in the Federal courts. Barron v. Baltimore, 7 Pet. 243; Eilenbecker v. Plymouth County, 134 U. S. 31. But the provision of the Constitution of Virginia, is substantially the same, and ought, we think, to be similarly interpreted.
Ve cannot, therefore, give our approval to the eases cited by the attorney-general from the courts of other states, which, if followed, would lead to a different result. The right of trial by jury ought to be regarded as not less sacred in the courts of Virginia than in the Federal courts, or any other courts which are governed by the principles of Magna Charter.
That the speedy trial guaranteed by the constitution is not [624]*624only a jury trial, but a jury trial in the first instance, Avould seem to be clear. The right in all cases to which it extends is made absolute and unqualified, and its enjoyment cannot be clogged by any unreasonable conditions. To say, therefore, that it is consistent with the constitution to make the conviction of the accused in one court a sine qua non to the enjoyment of the right in another court, or to its enjoyment at all, seems to us, as it did to the Supreme Court, a proposition altogether untenable.
Hor is it an ansAATer to this to say that when the accused is tried by a jury in the appellate court, ho stands unprejudiced by his previous conviction.
This may be so in the theory of the statute, but it is so theoretically only; for naturally the moral effect of the conviction has a tendency, at least, to prejudice his case in the estimation of the jury. But be that as it may, the restriction upon the right of trial by jury AA'hieh the statute imposes is not AA'ithin the true meaning of the constitution, and by that instrument, AAdiich Ave are SAVorn to support,- the court must be governed in its determination of this case. Other considerations can have no influence in determining it.
It folloAArs that the judgment must, be reversed, and an order entered discharging the plaintiff in error from custody.
TIinton, J., Avas absent at the first hearing, but on the re-liearing he concurred in the foregoing opinion.