It is said that the defendant properly refused to proceed *724with, the trial of Townsley because the affidavit before him did not charge an offense. If this point were well taken it might not be available to the defendant in the present action. But very clearly the point is not well taken. The act under which the affidavit is filed, being the act of April 10, 1889, “To regulate the sale of milk, ’ ’ provides:

“Whoever * * * * sells * * * adulterated milk, * * * shall, for a first offense, be punished by a fine of not less than fifty or more than two hundred dollars; for a second offense by a fine of not less than one hundred nor more than three hundred dollars, or by imprisonment in the workhouse for not less than thirty nor more than sixty days; and for a subsequent 'offense, by a fine of fifty dollars, and by imprisonment in the workhouse of not less than sixty days nor more than ninety days.”

The fourth section of this act provides that milk which contains less than twelve per cent- solids shall be deemed to be adulterated. Counsel fou the defendant do not demonstrate, nor does it appear to be demonstrable, that the act charged, to-wit, selling milk which contained 10.61 per cent, of solids, and no more, is not a violation of the statute.

It is further urged that the defendant, as justice of the peace, is without jurisdiction to try the accused without the intervention of a jury. The affidavit does not charge the sale as other than a first offense and, therefore, imprisonment could not,' under the provisions of the statute above quoted, be a part of the punishment. Not only would this conclusion follow the rule applicable to such cases, that every fact relied upon to increase a penalty or punishment must be charged, but it is required by the express terms of Section 3718a, Revised Statutes:

“And provided further, that where, in any such laws, after the first offense, a different punishment is provided for subsequent offenses, the information or affidavit, in order to avail the State of the benefit of such additional punishment, shall so charge that it is the second or subsequent offense, and unless such special charge is so made, the punishment shall in all cases be as of the first offense.”

Since Inwood v. The State, 42 Ohio St., 186, it has not been disputable in this state that the General Assembly may provide for the trial without the intervention of a jury of offenses of the character of this, where imprisonment is not a part of the punishment. By Section 3718a, Revised Statutes, jurisdiction *725of these cases has been conferred upon justices of the peace (The State of Ohio v. Ruedy, 57 Ohio St., 224). There is no provision of the statute for sitmmoning a jury except upon the condition prescribed in the section referred to: “In any such prosecution where imprisonment may be a part of the punishment, if a trial by jury be not waived.” Since the defendant, as a justice of the peace, was vested with jurisdiction to try the accused, and was without authority to call a jury for the trial of the charge preferred by this affidavit, his refusal to try the accused without a jury is a refusal to exercise his jurisdiction.

In support of the demurrer it is further insisted that mandamus will not lie to compel the performance of the suggested duty because the defendant has decided that he is without jurisdiction and that decision, if erroneous, can be corrected only by proceeding in error. No statute authorizing a proceeding in error for the reversal of such proceeding has been pointed out, nor does this view of the subject admit the well recognized office of the writ of mandamus. Formerly the writ of procedendo ad judicmm was awarded by a court of superior jurisdiction to compel a inferior tribunal to proceed in cases where it refused to act because doubtful of its jurisdiction, or satisfied that it had none. It was, in substance, a writ of mandamus though having a peculiar name because of its office in the particular case. But in modern practice the distinction in name has disappeared and mandamus is allowed, not to control discretion, but to compel its exercise. In re Turner, 5 Ohio, 542; State, ex rel, v. McCarty, Judge, 52 Ohio St., 363.

Demurrer overruled and peremptory ivrit allowed.