I dissent from the conclusions reached by a majority of the court.
In the city of Buffalo, in May, 1904, were certain justices of the peace sitting as justices to the police with power to try cases of alleged offenses against laws of the State or ordinances of the city of Buffalo which might be tried summarily without a jury by a justice of the peace of the Court of Special Sessions.
Upon May 15, 1904, respondent John Cronin was tried and convicted of disorderly conduct before one of said justices and sentenced to pay a fine of $100, or in default thereof to be committed to the Erie County Penitentiary for the term of one day for each and every dollar of such fine not exceeding six months. The fine not having been paid imprisonment resulted.
It appears from the record of the proceedings before the learned county judge and from the argument of counsel for respondent upon this appeal that the prisoner so confined was discharged for want of jurisdiction on the part of the court in which he was tried, in that the violation of the ordinance charged against said John Cronin could not be prosecuted as and for a criminal offense but by a civil action only, and in that said court in which said Cronin *456was tried could not impose a fine in excess of $50, and that, therefore, the imposition of the fine of $100 was without authority and void. This decision was reached upon the supposed authority of City of Buffalo v. Preston (81 App. Div. 480.)
I think that that case is not applicable; that the sentence imposed was with jurisdiction and lawful, and that the order releasing and discharging the respondent should be. reversed.
The pertinent provisions of the charter and ordinances of the city of Buffalo which lead to this conclusion are as follows:
Chapter 105 of the Laws of 1891, and amendments, being the charter of the city of Buffalo, provides:
Section 17. “ The common council shall from time to time enact ordinances: * * *
“(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. “ 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 officer before whom the matter shall be tried. * * * ”
Section 21. “An ordinance, passed under subdivision three of section seventeen of this act, 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 maybe committed to the Erie County Penitentiary for the term of one day for each and every dollar of said fine not paid. * * * ”
Section 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.”
*457Section 385 (as atncL by Laws of 1898, chap. 189). “There shall be three justices of the peace elected by the electors of the city of Buffalo * * * and shall constitute a board of justices to the police. * * * Said board shall assign from itss members a justice of police to each one of said districts * "x" * whose duty it shall be to attend the police station-houses in their respective districts * * * and examine into the case of every person confined therein and make delivery. * * * Said justices shall have power to try eases of drunkenness, vagrancy and all other offenses against any of the laws of the State or the ordinances of the city of Buffalo which may be tried summarily and without a jury, by a justice of the peace or a court of special sessions, committed by any person confined in the station-house, and to sentence every person found guilty of any such offense pursuant to the statute or ordinance creating such offense. In all other cases such ' justices shall have and possess such powers and jurisdiction as are prescribed in this act.”
Sections 386, 387 and 388 provide for certain details of procedure not necessary to be quoted.
Section 389. “ If the justice shall sentence such a person to pay a fine, and if it is not paid immediately, he shall by warrant commit such person to the penitentiary, there to be confined for the term of one day for each and every dollar of such fine, not exceeding six months, unless it shall be sooner paid. If the justice shall sentence such person to imprisonment he shall by a warrant commit such person accordingly.”
The ordinances of the city provide as follows: “ Chapter 9. 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.”
“ Sec. 5. No person shall make, or assist in making, any riot, noise or disturbance at any house, shop, store,” etc.
“ Sec. 8. No person shall use any profane or obscene language in or upon any public street.”
“ Sec. 30. Every person who shall be convicted of the doing or commission of any of the acts prohibited in the foregoing provisions of this Chapter shall forfeit a penalty of not less than two dollars nor *458more than one hundred dollars, unless a different penalty is specifically prescribed.”
No question is made but that sufficient evidence was produced to -convict the respondent of disorderly conduct within the provisions quoted, and it seems to me that by the statutes and ordinances above referred to a course of procedure was outlined leading up to the sentence which was imposed upon him. The charter conferred the power upon the common council to enact ordinances. Such ordinances were enacted defining disorderly conduct and providing a punishment for the commission of prohibited acts as severe as that imposed in this case. The statutory provisions, and especially section 389, authorized a justice sitting as did the one in question to pronounce sentence for the payment of a fine, and in default thereof of confinement in the penitentiary for a period not exceeded in this case.
The contention that an attempt has been made to visit an illegal punishment upon the relator is based largely upon the language of section 30 of chapter 9 of the ordinances already quoted, and which uses the word “ penalty ” instead of the word “ fine.” It is argued that the former word so used is indicative of an intent to provide simply for a punishment by civil suit, and that if the other purpose had existed of laying the foundation for criminal prosecution the latter word would have been used.
It may be conceded that the ordinance has been framed in a somewhat inapt and negligent manner; that in the strict and technical meaning ordinarily attached to the two words in statutory provisions a distinction would exist somewhat as claimed; and that, •construed simply by itself, the language of the ordinance would favor the idea of a civil prosecution such as is mentioned in section 23 et seq. of the charter and such as was under discussion in the Preston case.
We should, however, construe the language of this ordinance with reference to the provisions of the charter bearing upon this subject and endeavor, if possible, to give such a construction to it as will bring the ordinance into harmony with the charter. I think this may be done in such a manner as to uphold the conviction and meet the argument made against the same.
While reference has been made to the legal and technical usage *459which does ordinarily make a distinction between the word “ penalty ” and the word “fine,” still a penalty is defined by Webster as meaning, amongst other things, a fine. A careful consideration of the provisions brought to our attention indicates that the person who framed them used language in a somewhat popular way and seemed to regard the two words as interchangeable. The idea runs through the ordinances quoted of a criminal conviction leading up to a punishment which it is true is named as a "penalty.” But the words used, that a person committing certain acts shall be “guilty” of disorderly conduct and that every person who shall be “ convicted ” of doing any acts shall forfeit a penalty, etc., do not appropriately describe a liability to be enforced by a civil action.
It is not claimed that section 20 of the charter does not relate to fines as a punishment for criminal conviction, and yet that section, after providing that a “ fine ” may be prescribed in an ordinance, in the very same sentence and manifestly referring to the fine says “the amount oí penalty shall * * * be fixed by the court or officer before whom the matter shall be tried.” The use of these two words in this connection emphasizes very clearly that it was not the intention in adopting these provisions of the charter and the ordinances, by passing from the use of the word “ fine ” to the word “ penalty,” to abandon the character of a criminal prosecution.
The charter provides that the common council shall have the power to enact ordinances to define and prevent disorderly conduct, and section 20, just referred to, provides that a fine for violating any ordinance may be prescribed in the ordinance not exceeding $250. Section 30 of chapter 9 of the ordinances was adopted under the authority of this provision which provided that such ordinance should itself prescribe the “ fine ” which should follow as a punishment for a violation. Unless the language used in the ordinance, including the word “penalty,” is a compliance with this charter provision and an execution of the power conferred by it, there has been a failure to carry out the scheme contemplated by the charter, and punishment for disorderly conduct, so far as any provisions are called to our attention, would be limited to civil suits, which, to say the least, in ordinary cases of petty disorderly conduct and offenders would not be very effective.
*460I do not lose sight of the fact that since the decision of the Preston case this ordinance has been modified in certain respects in an attempt to make it comply with the principles of' that decision in supplying, a basis for a civil action.. The sharp change has not been made of merely substituting the word “ penalty ” for the word “ fine,” but certain language which we held indicated a criminal prosecution and repelled the idea of a civil action has been cut out and the entire ordinance put in the form which prevailed some time before our decision. I do not regard that, however, as decisive of the question now presented to us. As appears it was the intention of the charter to provide in some cases at least of wrongdoing for a double course of procedure against the offender. One course was by criminal trial and conviction and the other by civil process to enforce the collection of any fine which might be imposed (*§ 23 etseq.), and just as I am reasoning here that the mere use of the word “ penalty ” in the ordinance is not decisive against the employment of a criminal prosetion, so the use of the word “ fine ” under certain sections of the charter would not have been prohibitive of a civil prosecution. I see no inconsistence in providing for this twofold form of punishment against a disorderly person. There will be nothing inconsistent between a criminal sentence which after imposition and nonpayment of a fine confined the offender in the penitentiary until paid, and a civil prosecution in Municipal Court to collect the fine, and which, if successful, would operate as the payment to release the offender from confinement. It seems to me that the modification of this ordinance made since the Preston case may be amply accounted for by a desire to so frame it that the language should not be prohibitive of a civil action when useful, and that it is not necessary or advisible to adopt a theory which will relegate the city of Buffalo to civil actions as the only means of punishing ordinary police cases of disorderly conduct.
The order should be reversed and the writ dismissed.
Stover, J., concurred.
Order affirmed.
Laws of 1891, chap. 105, § 23 et seq.— [Rep.