This action was brought to recover of defendant a fine because of her alleged violation of certain ordinances of the city of Buffalo which prohibited the keeping of houses of ill-fame as being disorderly conduct. There seems to have been no doubt upon the trial in the Municipal Court but that the evidence warranted the conclusion that defendant had been guilty of the conduct charged. At any rate, no question of that character is presented or raised upon this appeal. The proposition, however, is strongly urged that the ordinances upon which, if at all, this action must rest, did hot, in fact, authorize a civil action in the Municipal Court to recover a fine, but that such ordinances rather pointed the way to criminal proceedings. In addition to this and to other propositions advanced against the propriety of the practice followed in this case in directing a verdict and in fixing the amount of the'fine for which the verdict was rendered, it is also claimed that it was unconstitutional for the municipal authorities by way of additional punishment to adopt *482ordinances which should provide a course of proceeding by a civil action for a fine against the keeping of a house of ill-fame under the designation of “ disorderly conduct,” when the general statutes of the State already provided for criminal proceedings against the same acts which constituted such disorderly conduct; that under said ordinances defendant was deprived of trial before a constitutional jury of twelve men.
We shall take up the consideration of the question first presented, because, in our judgment, the appellant’s contention in respect thereto is correct. We do not think that the ordinances relied upon by plaintiff did authorize this civil action to recover a fine in the Municipal Court, and that, therefore, the court was without jurisdiction" and the judgment must fall.
The consideration and discussion of such question requires a statement somewhat at length of various provisions in the charter of the city of Buffalo which conferred the power upon the municipal government to adopt and enforce ordinances and also of the ordinances themselves which are involved here.
Subdivision 3 of section 1Y of the charter of the city of Buffalo (Laws of 1891, chap. 105) provides that “ the common council shall from time to time enact ordinances * * * to define and prevent disorderly conduct.”
. Sections 20, 23, 24 and 25 of said charter further provide as follows;
“ § 20. A fine for violating any ordinance enacted under the authority conferred by this act may be prescribed in the ordinance, not exceeding two hundred and fifty dollars. The ordinance may prescribe that the fine for its violation shall not be less nor more than a certain sum ; in which case the amount of penalty shall, within said bounds,, be fixed by the court or dfficer before whom the matter shall be tried. A civil action may be maintained to recover á fine imposed by any ordinance enacted under the authority conferred by this act.”
“ § 23. Actions to recover fines incurred under this title or the ordinances enacted pursuant to it shall be brought in the name of the city. In the complaint in such action .it shall be sufficient to allege, generally, that the defendant has violated the provisions of said title or ordinance, stating the provisions thereof of which *483a breach, is claimed and the amount for which judgment is demanded. * * *
“ § 24. If the action be brought in the Municipal Court of Buffalo the first process may be a warrant or summons, * *
“§ 25. Execution upon judgment for fine may issue immedidiately, and shall command the officer to whom it shall be directed and delivered, if the judgment and his fees shall not be immediately paid, to take the body of the defendant and deliver him or her, with a copy of the execution, to the keeper of the Erie county penitentiary; and said keeper shall confine such defendant in said penitentiary for the term of one day for each and every dollar unpaid upon said judgment, not exceeding six months * * * .”
The foregoing sections clearly provide for the imposition of a fine for the violation of an ordinance authorized by the act recover* able by civil action and point out the course of procedure therein. As we understand it, no question is made that the Municipal Court of the city of Buffalo would have jurisdiction of an action brought to recover a legal fine where a civil action was authorized.
We pass next to the quotation of sections 21 and 26 of said charter, which provide as follows:
“ § 21. An ordinance passed under subdivision three of section seventeen of this act (already referred to as authorizing the adoption of ordinances to define and prevent disorderly conduct) may provide that any person, upon conviction of a violation thereof, shall be fined or committed to the Erie county penitentiary for such time as the court or officer before whom such person was convicted shall fix, not exceeding six months; in case the person convicted of such violation is fined and does not immediately pay such fine, he may be committed to the Erie county penitentiary for the term of. one day for each and every dollar of said fine not paid. * * *”
“ § 26. When an ordinance provides that a person convicted of breach of it may be sentenced to confinement in the penitentiary, the person charged with a violation of such ordinance shall be proceeded against in the way provided by law for proceeding against persons charged with the commission of a criminal offense.”
We think that the foregoing two sections authorize and relate to criminal proceedings. The last one manifestly does. We think *484.that the first one also does ; that it is not connected with the other sections first quoted in providing for a civil action merely to collect a.fine. When this section gives the court or officer before whom the alleged-violator is brought the power upon conviction .either to •fine or commit to the penitentiary, its character as between civil and criminal proceedings must be determined. by all the powers therein conferred. The power, at the option of the court, or officer; -to commit to the penitentiary implies, as we think, a judgment and sentence to that effect and indicates necessarily a proceeding of a criminal nature. The nature of the proceeding is not changed or diminished in this respect because the optional power is given to confine rather than sentence- and commit to the penitentiary.
Concededly the Municipal Court of Buffalo had no power to entertain criminal proceedings. This is distinctly admitted by the learned counsel for the respondent in his brief, and there, can be no doubt about the correctness of his admission.
.. We next • proceed to the. ordinances which were adopted by the city of Buffalo- under the sections of the charter already quoted, and under the alleged authority of which this action was brought, for the purpose of determining whether said • ordinances were in fact framed and- adopted under the charter provisions authorizing civil proceedings to collect a fine, and therefore, authorized this civil action in the Municipal Court-.'
, As already indicated, we -do not think that they were so framed. In chapter 9 of the ordinances, of said city we find the provisions under review as follows
. “ Disorderly Conduct.”
- “ Section 1. Disorderly conduct is defined to be the doing or -commission of any of the acts prohibited in this chapter, and any person who- shall do or commit any of said acts shall be guilty of disorderly conduct.”
“§ 2. No person shall keep a house of ill-fame, house of prostitution, or assignation house within the city, or shall in any manner contribute to the support of- such houses, or shall voluntarily reside therein.!’
“ § 30. Every person who shall be convicted of. a violation of ■ any of the provisions of this chapter shall be fined not less than two dollars nor more than one- hundred-dollars,, and in case the person *485convicted of such violation shall not immediately pay such fine, he or she may be committed to the Erie County Penitentiary for the term of one day for each and every dollar of said fine not paid. * * *”
The last section is, of course, the decisive one in this inquiry. We think that an examination of its language at once suggests-that it was framed under and in accordance with the provisions of section 21 of the charter hereinbefore quoted and which, as we have indicated, in our judgment provides for criminal proceedings, or at least does not relate to and provide for merely civil actions to collect fines.
The language of said ordinance, in accordance with the authority conferred by said provision of the charter, seems, under a fair construction, to plainly provide that any person convicted of a violation of the ordinances against disorderly conduct may be fined a certain amount, and if said fine is not paid committed to the penitentiary. We think it must be fairly inferred that this fine and contingent commitment to the penitentiary are to be provided for in a judgment and sentence of the court. The authority to take hold of the convicted person and lock him up in the penitentiary if he does not.pay his fine must be found somewhere, and that abiding place would naturally and necessarily be in the sentence and judgment of the court which convicted him. To secure the remedy outlined by the ordinance in the case of a conviction for the offenses described, the court would in effect provide that the guilty person should pay a fine and stand committed until said fine was paid. This, beyond any question, would bé a determination in a criminal proceeding.
It would be in analogy with sections 484 and 487 of the Code of Criminal Procedure.
“ § 484. * * * A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of the fine.”
“§ 487. If the judgment be imprisonment, or a fine and-imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him - detained, until the judgment be complied with.”
We think that the provision in said ordinance that the convicted person, in default of payment of his fine, shall be committed to the *486penitentiary, clearly implies the power, upon the part of the convicting court to include in its sentence and judgment the provision for such result, and that the judgment so providing would be one in a criminal proceeding.
. Turning "in the other direction, it seems to ■ us that it would require a construction strained and savoring somewhat of force, to hold that said ordinance was an enactment under and upon the line of the provisions of the charter quoted relating to civil actions for fines, and especially that the brief provision that the convicted person Upon not paying his fine might be committed to the penitentiary was intended to be a provision under section 25 of the charter providing for the details of a civil execution upon a judgment for a fine which should command the officer to take the body of the defendant if he did not pay the fine and costs. Again, a mere inspection of the provisions of the ordinance in question and of the provisions of the charter for civil proceedings indicates to our mind an entire lack of relationship between them. If section 30 of the-ordinances was intended to provide for civil proceedings.to collect a fine under the sections of the charter governing that subject, it was absolutely unnecessary for it to do more than provide the amount of the fine to be imposed in case of a violation of the ordinance. That being done, the charter provisions then took hold of .the: subject and amply provided for a civil action to be maintained to recover the fine, and for the proceedings in that action, including the judgment and body execution in default of payment of the fine.
Upon the other hand, section 21 of the charter relating in our opinion, as we have suggested, to criminal proceedings, expressly enacts that an ordinance adopted under subdivision 3 of section 17 of the charter relating to disorderly conduct, may contain just such provisions with reference to fines and commitment to the penitentiary as section 30 of the ordinances does contain. Thus, some of the provisions of said ordinance which are superfluous and unnecessary if it relates to fines to be collected by civil actions, are expressly suggested and natural if held to relate to proceedings under the criminal sections of the charter.
It is, perhaps, of some significance that the ordinance (§ 30) prior to 1899 read as follows: “ Every person who shall be convicted of the doing or commission of any of the acts prohibited in the foro*487going provisions of this chapter shall forfeit a penalty of not less than five dollars nor more than one hundred dollars unless a different penalty is specifically prescribed.” During said year it was amended by adding the words now found therein with reference to the commitment to the penitentiary in case of non-payment of the fine and which, as has already been fully suggested, seems to us to be so thoroughly in harmony with the provisions of section 21 of the charter, and so out of relation with the other provisions of the charter relating to civil actions for fines.
The act of keeping a house of ill-fame for which the plaintiff is seeking to administer a punishment through a fine and civil action, is one of which the general criminal law of the State beyond any question takes cognizance. We think there is force in the suggestion that the court should not in the absence of a clear expression of such intent, infer a purpose to provide for special proceedings by ordinance outside of those already supplied by-the general statute law of the State, and which proceedings in effect subject a defendant to a somewhat summary punishment. In saying this, we do not intend to indicate in any manner our opinion that the law-making body of the municipality may not under legislative authority by proper ordinances provide for the punishment of offenses against the municipal welfare in such manner by fines to be recovered in civil actions. There is no reason, however, why the intent to do so should not be clearly expressed.
The construction which we have placed upon the language and character of the particular ordinances under review necessarily leads to a reversal of the judgment appealed from, however ample may be the power of the common council to adopt in proper form an ordinance which would authorize such a proceeding as plaintiff has attempted to invoke in this case.
The judgment of the Supreme Court and Municipal Court, therefore, should be reversed, with costs.
Adams, P. J., Williams and Nash, JJ., concurred; Spring, J., dissented.