Taylor

I concur in the judgment, not because I think the constitution secures the right of trial by jury in prosecutions for petty misdemeanors created by statute or municipal ordinance, but solely upon the ground that the right seems to be conferred by the provisions of the Penal Code.

In my opinion, the legislature has the power to provide for summary proceedings to enforce municipal regulations without a jury trial, but I cannot discover that such power has been exercised. By sections 1430-1435 of the Penal Code, relating to proceedings in justices’ and police courts, and section 1042, relating to proceedings in the superior court, the defendant in a criminal action who pleads not guilty is entitled to demand that the issue be tried by a jury. In other words, the statute, irrespective of the constitution, secures the *577 right. The evil involved is one which may well engage the serious attention of the legislature, but as long as the law remains as it is, I see no escape from the conclusion, that in any criminal action prosecuted in the name of the people of the state, the defendant must be tried by jury, unless in cases of misdemeanor a jury is waived.

The plaintiff was convicted in a justice’s court of the violation of a municipal ordinance of the city of San José-, and sentenced to paya fine of thirty dollars, or be imprisoned in the city prison for thirty days. He appealed the case to the superior court of the county, where the judgment was reversed and a new trial granted. Thereafter the case was set down for trial in that department of the superior court of which the defendant herein was judge. When the case was set, the defendant, plaintiff here, demanded a trial by jury, but the judge of the court denied the demand, and refused and still refuses to comply therewith. Thereupon this proceeding was commenced to obtain a peremptory writ of mandate commandipg the defendant to grant plaintiff a jury trial.

*574 The answer admits all the facts alleged, and waives all objections that might be made to the writ, to the end that the questions sought to be raised may be decided upon their merits.

The city of San José is a municipal corporation existing under a charter passed by the legislature and approved March 17, 1874. (Stats. 1873-74, p. 395.) Section 9 of the .charter provides that the common council shall have power “ to lay…