Taylor v. Reynolds

Belcher, C. 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 out, open, vacate, improve, cleanse, water, and repair streets and sidewalks; .... to define, prevent, and remove nuisances; . . . . and any violation of any lawful order, regulation, or ordinance .... is hereby declared a misdemeanor, and all prosecutions for the same may be in the name of the state of California.”

The ordinance which the plaintiff is charged with violating provides: “ Sec. 1. No person shall place, erect, or maintain any business-stand or other obstruction on any portion of any street or sidewalk of the city of San José. Sec. 2. Any person violating any of the provisions of this ordinance, upon conviction thereof, shall be fined in a sum not exceeding one hundred dollars, or be imprisoned for a term not exceeding thirty days.” The obstruction of a public street or sidewalk in a city is a public nuisance (Pen. Code, sec. 370), and the Penal Code (sec. 372) declares: “ Every person who maintains or commits any public nuisance the punishment for which is not otherwise prescribed, or "who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.” The action was then a criminal proceeding, and the accused was authorized to plead to the charge, as he did, not guilty. And when he was convicted in the justice’s court he had a right to appeal from the judgment to the superior court of the county, and a new trial being therein granted, it had to be in that court. (Pen. Code, secs. 1466, 1469.) The plea raised an issue of fact which could only be tried in the manner prescribed by statute. As to the manner of such trials in the superior court,