This was an action brought before the Special 'Court of the City of Wilmington, to recover the penalty for a violation of an ordinance of that city in keeping open a barber .shop on Sunday. A question of jurisdiction meets us on the threshold, which cannot be avoided: Has the Special Court ■of the City of Wilmington any civil jurisdiction? Being a •Court ot limited and special jurisdiction, its jurisdiction must appear in all cases, and cannot be presumed, as it might be of -a Court of general jurisdiction. By an act ratified Aug. 11th 1868 (Acts of 1868, ch. 12, p. 13), the Legislature established - a Special Court in the City of Wilmington, and gave it jurisdiction over misdemeanors committed in that City. By an act ratified Dec. 18th 1868, entitled “An Act to amend the -■charter of the City of Wilmington,” the Legislature (sect. 2,) made all penalties and fines imposed by any ordinance of the City Government, recoverable before the Judge of the Special Court; and also (sect. 5) gave him all the powers of a Justice •of the Peace.
It is by virtue of these acts that the Special Court claims the jurisdiction in question. Are they consistent with the Constitution?
Article IY, Sect. 4, of the Constitution enumerates Special •Courts as one of the classes of Courts in which the judicial power of the State is vested. Section 19 says, “The General Assembly shall provide for the establishment of Special Courts .for the trial of misdemeanors in cities and towns, when the same may be necessary.” Perhaps if this section stood alone, it might be contended that the Legislature, by virtue of its *584general power to legislate where not forbidden,, might nevertheless confer civil jurisdiction on the Special Courts. However convenient this might be, it seems to us to be expressly forbidden. Section 15 of Article IY says: “The Superior Courts shall have exclusive original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given tc some other Court;” and section 33 gives to the Justice of the Peace exclusive original jurisdiction of all civil actions founded on contract, wherein the sum demanded shall not exceed two* hundred dollars &c. An action for a penalty is a civil.action, and is technically classed among those which are ex contract'll;hence it would seem clear that a Justice of the Peace must, have exclusive jurisdiction of it, when the amount claimed is within the constitutional limit.
The attempt by section 5 of the act of Dec. 18th 1868, to confer the power of a Justice of the Peace on the Judge of the Special Court cannot avail, for Art. VII, sec. 5 of the Constitution requires Justices of the Peace to be elected by the several townships, and the Legislature cannot change the mode of their appointment. With this view of the jurisdiction of the Special Court, it is unnecessary to consider the effect of the two city ordinances, the more especially as the mayor and aldermen can so easily clear them of any obscurity. Action dismissed.
Let this opinion be certified, &c.
PER Curiam. Action dismissed*