delivered the opinion of the court.
This writ of error is to a judgment of conviction of the plaintiff in error upon a charge of violating an ordinance of the city of Roanoke, Virginia.
The General Assembly of Virginia delegated to the city of Roanoke, through its charter, the power to suppress gambling. (City Charter, section 2, subsection 21). For this purpose the General Assembly? through section 2 of the charter, subsection 32, granted to the city the power to make and enforce ordinances and to provide suitable penalties for the violation of such ordinances “by fine not exceeding $500 or imprisonment not exceeding six months or both * * Accordingly, the city, through its council, in the exercise of this power ordained (City Code, Chap. 68, section 8) that any person found guilty of conducting a lottery or any game or bank, wheel of fortune, slot machine, etc., “shall be confined in jail not less than one nor more than twelve months and fined not less than $100 nor more than I500.”
The ordinance did not follow the charter power in respect of the maximum jail term. The power granted in the charter was to impose a maximum jail term of six months, while that authorized in the ordinance was to impose a term of twelve months.
*487“It is an established principle that a municipal corporation, deriving its powers, as it does, from legislative grant, can exercise no power not expressly, or by fair implication, conferred upon it, * * *” Muscoe v. Commonwealth, 86 Va. 443, 10 S. E. 534.
Boyles, the accused, was tried under this ordinance, found guilty and his punishment fixed at a fine of $100 and a jail term of thirty days. At the trial he contended that the ordinance was void because at variance with the city charter, but the trial court did not concur in this contention. The court reduced the maximum jail term to six months when it submitted the case to the jury, thus taking off six months from the maximum provided in the ordinance. This conduct on the part of the trial court is the basis of the sole assignment of error.
It is true that there is authority to the effect that when the penalty in an ordinance is in excess of that authorized by the charter, the ordinance is not void; only the excess penalty is void, 37 Am. Jur. Municipal Corporations, sec. 164, page 786, but we approach the case from a different viewpoint.
The jail term provided in the ordinance is beyond the power granted in the charter, which of course is supreme. The duty of fixing the punishment in strict accord with the charter was upon council, the legislative body. It failed in its duty and sought to exercise a greater power than had been granted it. The maximum term in jail of twelve months was beyond its power and void.
To say that the court can of its own volition reduce the jail term provided in the ordinance from twelve months to six months and thereby vitiate the excess jail term is to say that the court can legislate and substitute a maximum term of six months when that duty is not a judicial one but one solely for the legislature. This court has no power to amend the ordinance and scale the jail term from twelve to six months. If the court could do that, then it could reduce it to one month or do away with the jail term altogether. This would violate section 5 of the Virginia Constitution, which provides for the separation of powers. Statutory laws are made solely *488by the legislative body. Fairbanks, etc., Co. v. Cape Charles, 144 Va. 56, 131 S. E. 437.
Penal statutes are to be construed strictly against the State and favorably to the liberty of the citizen. To constitute the offense the act must come within both the letter and spirit of the statute. Michie’s Va. and W. Va. Digest, Vol. 9, p. 57. Words of a penal law will not be extended by implication to the prejudice of the accused, and all reasonable doubt will be resolved in his favor.
We conclude that the portion of the ordinance providing for the jail term is void.
Does that fact vitiate the remainder of the ordinance? The answer depends upon whether the ordinance is severable. If it is, then provision for the fine remains valid. If, however, the void portion permeates the whole, then the whole ordinance is void.
What is the rule as to severability?
The test of severability in the end depends upon the intent of the law-making body. In the case at bar, if we take from the ordinance the provision for a jail sentence, because the maximum goes beyond the charter grant, can we say that what remains, namely, the provision for a penalty by way of a fine only, represents the intent of council? If what remains does not represent the intent of council, then the whole ordinance is void, and the rule of severability does not apply. This subject is discussed at length in Carter v. Carter Cod Co., 298 U. S. 238, 56 S. Ct. 855, 80 L. Ed. 1160. See also, Hannabass v. Maryland Cas. Co., 169 Va. 559, 194 S. E. 808.
It is contended that the ordinance is severable and that under the theory of severability the trial court was justified in reducing the maximum jail term of twelve months expressed in the ordinance to a maximum of six months to meet the charter requirement. But this action of the court was not an exercise of the severability rule. It was nothing more or less than amending the ordinance, a purely legislative function. Nor is it possible to discard the provision for the jail term entirely and still meet the legal requirement of legislative intent by holding valid the remaining portion which would limit the penalty to only a fine.
*489 The rule that there is a presumption in favor of severance when the legislative body has provided that if any part of a statute is declared invalid it shall not affect the validity of the remaining portion, as was the case here (see City Code, Chap. 2, section 3), is strongly urged upon us. Such a clause or provision usually creates a presumption. But finally, the legislative intent must control. We may begin with the presumption in favor of divisibility; that is, it may be presumed that the council in this case intended that the ordinance could be divided and the invalid portion discarded, and that what remained represented its intent and purpose. Yet the presumption is overcome by facts which clearly show that the council never intended that the offense should be punishable by only a fine, which would be the case if we sever the jail sentence from the punishment and leave as valid only the punishment by fine. Those facts are that when this case arose and it was brought to the attention of council that the ordinance exceeded the charter authority, the council, instead of holding to what remained of the alleged severed ordinance, immediately reordained the ordinance and reduced the maximum jail sentence to six months, thereby meeting the charter requirement. The language of the new ordinance is that “* * * he shall be confined in jail not less than one nor more than six months and fined not less than $100 nor more than $500.” This new ordinance which is a part of the City Code of Roanoke, and which is evidence in all courts (Acts 1924, p. 720), carries the penalty of a mandatory jail sentence in addition to the fine. This fact alone demonstrates beyond doubt that the council never had any intent to eliminate a jail term from the penalty as would be the case if we applied the rule of severability.
As said in Williams v. Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 73 L. Ed. 287, 60 A. L. R. 596, severability does not apply unless it is clear that the legislature would be satisfied with what remains after the invalid part is eliminated. As indicated, the council was not satisfied with what remained of the ordinance. It never intended that an offender should go without a jail sentence, and just as soon as it had an opportunity it went on record disclaiming any intent to *490let an accused off without a jail term, by providing for a mandatory jail sentence when it ordained the new ordinance. This being true, and the legislative intent being so clear, nothing remains for this court to do but declare the challenged ordinance void.
As indicated, the new ordinance is now in effect, and to invalidate the old one affects only this case.
The judgment is reversed, the warrant is dismissed, and the accused is discharged from further custody.
Reversed.