Opinion, per JONES, J.

expense of the corporation." (34 Cyc., 354.) While the order of distribution may have been an adjudication of the existing rights between the parties, it in no wise affected this expense of the court which accrued after that order. It cannot be claimed that if the expense had been an ordinary administration expense of the receiver the court would not have had inherent power to protect itself by the payment of the receiver's indebtedness. (34 Cyc., 307.) While the petition for intervention was filed at a succeeding term of the court, it was filed at a time when the court still had charge of the property, and before final distribution of the proceeds arising from its sale. This sale was not confirmed until August 8, 1916. Prior to that time, to-wit, on July 25, 1916, the receiver and the court were not only advised that this claim existed, but that the same was being prosecuted in a court of law, under an order of court in the foreclosure suit authorizing such action.

In cases Nos. 15698 and 15706 the judgment of the court of appeals reversing that of the common pleas in the independent equity suit is reversed, and that of the common pleas court affirmed.

In case No. 15723 the judgments of the court of appeals and the common pleas court are reversed, and the case remanded to the court of common pleas, with instructions to overrule the demurrer to the petition for intervention.

Judgments reversed.

NICHOLS, C. J., WANAMAKER, MATTHIAS, JOHN

SON and DONAHUE, JJ., concur.

Opinion, per WANAMAKER, J.

HOFFMAN V. THE STATE OF OHIO.

Constitutional law-Statute requiring accused to demand jury— Error proceedings-Record to show demand and refusal, etc. - Criminal law.

1. Statutes providing in substance that before an accused shall be entitled to a jury in the trial of misdemeanors or petty offenses under municipal ordinances, where imprisonment is made a part of the penalty, he must demand the same, are not in any wise violative of the constitutional right to trial by jury. 2. Under such statutes before error may be prosecuted to the action of the trial judge in trying the case without a jury, the record must show such demand and a refusal to grant the same.

(No. 15704 — Decided April 2, 1918.)

ERROR to the Court of Appeals of Cuyahoga county.

The facts are stated in the opinion.

Messrs. Marvin & Marvin, for plaintiff in error. Mr. Samuel Doerfler, prosecuting attorney, and Mr. James L. Lind, for defendant in error.

WANAMAKER, J. George A. Hoffman was convicted in the municipal court of Cleveland for a violation of Section 12628-1, General Code. Said section reads as follows:

"That it shall be a misdemeanor for any person to operate a motorcycle or motor vehicle of any kind upon any public highway or street while in a state of intoxication, and upon conviction he shall be subject to punishment by a fine not less than twenty-five dollars nor more than one hundred

Opinion, per WANAMAKER, J.

dollars, or imprisonment in the county jail for not more than six months, or both."

A motion for a new trial was filed and overruled, and error was prosecuted to the court of appeals, which court affirmed the judgment below.

The sole error claimed in the court of appeals and claimed here as the basis for a reversal of the conviction grows out of the following journal entry from the record of the municipal court:

"July 25, 1916. Affidavit filed, warrant issued and returned. Defendant in court and pleads not guilty. Hearing had and he is found guilty and he is sentenced to thirty days imprisonment in the county jail, and to pay a fine of fifty dollars and costs, and to be imprisoned in the county jail until said fine and costs are paid or secured to be paid or he is discharged according to law."

Obviously in this journal entry there is no specific reference to any jury in this trial; nor to a judge in the trial. The language is "defendant in court and hearing had * and

*

*

he is found guilty." But the conceded facts are that this was all done by the municipal judge.

It is urged that before such municipal judge could try this cause there would have to be a prior waiving of a jury, and that such waiver must affirmatively appear in the record in order to give the judge sole jurisdiction, since imprisonment is a part of the penalty provided by the statute.

It must be conceded, of course, that such affirmative waiver does not expressly appear in this record. Prosecutions for misdemeanors under federal and state laws, and for petty offenses under

Opinion, per WANAMAKER, J.

municipal ordinances, may be divided into two classes, under the various statutes conferring jurisdiction:

1. Those where a jury must be waived before the judge has jurisdiction to try the offense without a jury.

2. Those in which a jury must be demanded before the judge has jurisdiction to try the case with a jury before the defendant is entitled to a jury.

Manifestly an affirmative act is therefore contemplated by the statute under the first class to avoid a jury, and under the second class to avail oneself of a jury.

How does the statute giving jurisdiction read in this case?

Plaintiff in error admits that the municipal court, as such, had jurisdiction by virtue of Section 1579-12 et seq., General Code, and that Section 1579-20, General Code, provides the general plan of practice and procedure in reference to criminal jurisdiction of the municipal court, said section providing that it shall be the same as that now, or hereafter "possessed by police courts in municipalities."

By virtue of the foregoing sections plaintiff in error contends that Section 4577, General Code, relating to the jurisdiction of police courts, controls in this case in the municipal court. The latter part of that section is as follows:

"Cases in which the accused is entitled to a jury trial, shall be so tried, unless a jury be waived."

Opinion, per WANAMAKER, J.

There is much virtue in plaintiff in error's contention for reversible error if Section 4577, General Code, applies to the municipal courts, and in the absence of any provision relating specifically to municipal courts doubtless said section would apply. But the general assembly of Ohio, in the municipal-court act of Cleveland, expressly provided otherwise by Section 1579-24, General Code, which reads:

"All causes in the municipal court shall be tried to the court unless a jury trial be demanded by a party."

This language is all-comprehensive and includes both civil causes and criminal causes. If there be any doubt as to this construction, the subsequent provisions will remove such doubt.

Now, what is guaranteed by the Constitution? It is "the right of trial by jury;" that is, no law may be passed denying, restricting or limiting this right, as it is known at the common law. But a requirement imposed by law upon the accused to demand his right before he may enjoy it is not a restriction, limitation or violation of such right.

This has been the uniform holding in Ohio for so long a time, and with such strong show of reason, that it ought not now to be disturbed, as will fully appear from the following cases.

One of the earliest cases decided by this court involving this question is that of Dailey v. State, 4 Ohio St., 57, where there was a criminal prosecution in the probate court for the unlawful sale of intoxicating liquors. The statute regulating trial by jury in the probate court then provided "upon