• The Municipal Court of the city of Buffalo was created by the charter of the city, and its jurisdiction, which is exclusively confined *488to civil actions Or proceedings, is defined in the. chart originating it. ■ (Revised City Charter [Laws of 1891/ chap. 105], tit. 22, and acts amendatory thereof.) It is specifically vested with .jurisdiction in actions for penalties. (§ 456, subds. 5,13, as amd. by Laws of 1898, chap. 101), in :the. latter of which occurs the following: “ The court shall also have jurisdiction in an action commenced for the recovery of a -fine or penalty for the violation of an ordinance of the city and in an action or proceeding instituted for the punishment of any.peiv son for the offense of violating any such ordinance.”
Section; 17 of the charter, which is found in chapter 1 of title 2 thereof, pertaining to the legislative department, which, is the common council of the city, directs that body to enact ordinances for certain purposes enumerated and among others (Subd. 3) “ to define and prevent disorderly conduct; to prevent all disorderly assemblages, all disturbing noise, all drunkenness in public places; and.to. punish.vagrants, beggars and• disorderly persons, as:defined by law.” Section 20 of-the act, and which is in- the same chapter, vests the power- m the common council to fix. the penalty or fine for a violation of any ordinance which it may enact, limiting the • maximum sum to $250, The section further provides “ A civil action may be maintained to recover a fine imposed by any ordinance enacted-under the.authority conferred by this-act.” • .
If.the penalty is a varying sum, it is to “be fixed by.the court or officer before whom the matter shall be tried.” _(§ 20.) By section 23 it is provided that “actions to recover fines incurred under this title,, or the ordinances enacted pursuant to;it, shall be brought in the name of the city;” and if in the Municipal Court, “ the first process may be a warrant or summons.” The form of the • complaint (§ 23) and when the summons may be returnable and served (§ 24) are also prescribed. Section 25 provides for the - immediate issuance of an execution upon a judgment for a finé, and if not collected for the deliverance of the defendant to the Erie County Penitentiary and his confinement therein “ for the term of one day for each and every dollar unpaid upon said judgment, not exceeding six months.”
To sift and group these various sections we find that the authority, of the Municipal Court, to entertain actions to recover, any fine or, penalty prescribed by the common council, is given by .the Legislature. The common council is required to enact certain ordinances* *489but it possesses no power to enlarge or lessen or interfere with the jurisdiction of the Municipal Court over actions for penalties. The duties and functions of that court have already been taken care of by the charter itself. The court, for the purpose of enforcing its judgments for. fines and penalties, is not restricted to an execution against the property, but the execution commands the officer to imprison the judgment debtor in the county penitentiary unless payment is made at once. That is, a body exfeeution is permitted to enforce the judgment. All these steps it is to be remembered are fixed by the Legislature to make effective the civil and only jurisdiction of the court in collecting the fines or penalties prescribed, by the common council in its ordinances.
Pursuant to the authority delegated to it by the Legislature the common council enacted ordinances defining in chapter 9 what constituted disorderly conduct, and covering the offense upon which this action is founded (§ 2). In several of the sections a specific sum was provided for the violation of the particular ordinance, while in others no sum is established. Section 30 of this chapter, as amended in 1899, reads as follows : “ 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 convicted, 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. All provisions of this chapter imposing or prescribing the penalty or punishment for any violation thereof inconsistent with the provisions of this section as amended are hereby repealed.”
The common council did not presume to declare that these fines were recoverable in a civil action in the Municipal Court. An enactment of that kind would hot have been within its province for ■the reason, already noted, that the Legisláture had set the boundaries for the jurisdiction of that court. • The duty of the common council was first to define the offense and then to place the penalty either absolutely or within certain limits. Its enforcement as a civil remedy the council had nothing whatever to do with, and evidently appreciated the limitations upon its authority and did not ■overstep them.
*490The common council, however, was authorized, in effect, to make the offense of disorderly conduct a misdemeanor, and to prescribe the punishment to be meted out upon conviction for its- violation (Revised Charter, § 21), and it might be by fine with consequent imprisonment in the county penitentiary; Section '26, which evidently has reference to the criminal proceedings, is as follows: “ 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.”
In ordinances enacted for- the repression of disorderly conduct^ in addition to the imposition of a fine, the common council, at its option, by section 21, might make the offense a misdemeanor. The exercise of this power, however, was not intended to destroy the penalty or fine to be enforced as á civil remedy, but as a-further safeguard for the curtailment of this particular class of offenses. We have, therefore, two distinct remedies permissible against one who is charged with a violation of the ordinances defining disorderly conduct, one, a civil action in the Municipal Court to recover the fine- or penalty, and to enforce the judgment a body execution may issue upon failure to pay forthwith-; the other, an arrest, and upon conviction in a court of criminal jurisdiction the imposition of a fine by the court' and imprisonment in a penitentiary in default of payment.. They are not in conflict. The statutes frequently make an offense a misdemeanor and" also attach a penalty to be obtained in an action at law. In the early Excise Law the seller of whisky without a license was liable to indictment and also a civil action for a penalty at the instance of the overseer of the poor of the town. If the ordinance did not in terms make a keeper of a disorderly house liable to punishment as a criminal he would be so liable by virtue of the definition of that crime in the Penal Code (§ 322). Concede, as is contended, that section 30 of the ordinances was enacted primarily pursuant to section 21 of the charter to authorize a criminal prosecution. That is the only prosecution the common council could authorize. The charter itself already vested the Municipal Court with jurisdiction over fines and penalties. The common council in this section did fix the fine *491for disorderly conduct and that gave the civil court the power to entertain a suit for its enforcement. The last clause of section 30 repeals all provisions of the chapter “ imposing or prescribing the penalty or punishment for any violation thereof inconsistent with the provisions of this section as amended.” That in effect repeals every one of the provisions which ; fix a penalty, for they either name its sum absolutely or else the range is not identical with that provided by section 30: It is either less or more.. It would seem, therefore, that the common council intended by this amendment to prescribe the fine for every offense uniformly within the limits of two and one hundred dollars. This construction finds support in the fact that by the original section 30 the penalty fixed applied “unless a different penalty is specifically prescribed.” In the amended section this clause is significantly omitted. But an examination of the various sections of chapter- 9 discloses that the technical wording ordinarily applicable to a criminal prosecution was not designed. At least in four of the sections it is provided that the person “ upon conviction forfeit and pay a penalty ” or in substance that language is used (§§ 25, '27, 31, 32); in others the words “ forfeit a penalty ” (§§ 7, 24), and “ under a penalty * * * ■for each offense ” (§§ 18, 20, 22, 23).
Imprisonment in the penitentiary is provided for in section 21 of the charter, which may be said to relate to misdemeanors only, and also by section 25 thereof, which clearly applies - to civil actions and the incarceration in each case depends upon the omission of the defendant to pay the fine imposed and the punishment of the defendant is limited precisely alike to the amount of the fine. It is entirely reasonable, therefore, to assume that the common council had both of these charter provisions in mind when it enacted section 30.of the ordinances. The phraseology of the section may not be happy, but we must realize that it was adopted in the light of the charter provisions prescribing the means of enforcing remedies and administering punishment.
It is also to be observed that no specific warrant is found in section 30 of the ordinances to impose sentence which seems to be contemplated by section 26 of the charter. That is, so careful was the common council to hew to the line of imposing a fine that even in the criminal proceedings if such were designed by section 30 they were *492not .severed from the fine or penalty, but were subsidiary to it for the purpose of its enforcément., -
The provisions tinder review have been sustained by authority to the effect that the fact that the keeping of a bawdy house is a misdemeanor (Penal.Code, §>.322), did not deprive the common council-of authority to enact ordinances, declaring that the keeper of such a house, was guilty of disorderly conduct and that a suit-to recover the penalty established for its violation might be maintained. (People v. Miller, 38 Hun, 82; Arhart v. Stark, 6 Misc. Rep. 579; City of Buffalo v. Schliefer, 25 Hun, 275.)
Ordinances of this character áre within the police control and regulation of the city and prosecution for the offense is a civil action and a. .summary trial is allowed. (Ogden v. City of Madison, 111 Wis. 413; Wong v. City of Astoria, 13 Ore. 538; City of Mankato v. Arnold, 36 Minn. 62.)
It is somewhat uncertain from -the record just what was the course pursued by the Municipal Court judge at the close of the evidence. A jury had been impaneled and they were directed by the court to return a verdict of guilty, but the court later on stated that this was a proceeding to recover a fine and not a criminal proceeding. The form of the verdict rendered, and whether the jury fixed the penalty, does not appear. I .assume, however, that the court directed a verdict for a specific sum. By section 457 of the charter (as amd. by Laws of 1898, chap. 101) “where a jury trial is had the court is vested with the same powers before a verdict is rendered as are conferred by law upon the Supreme Court in the trial of an action before it.” This would seem to vest the trial judge with authority to direct a verdict in a case where the direction is permissible in the Supreme Court. Section 20 of the charter gives the court the authority to determine the amount of the> penalty where it is between two sums.
I think the judgment should be affirmed, with costs. .
Judgments of the Supreme and Municipal Courts reversed, with costs, upon questions of. law Only, the facts having been examined and nc error found therein.