dissentim,g. — I. I am unable to concur in the foregoing opinion. It cannot be doubted that under the statute authorizing cities and towns to license and regulate the sale of wine and beer, the munincipal corporations, by ordinance, may prescribe the places in which such liquors may be sold; may forbid sales thereof on certain days and at certain times; may prescribe that persons of bad character, or given to unlawful practices, shall not have licenses; and may impose upon persons licensed the duty of keeping orderly houses and require them to refrain from violation of law.
The plaintiff in this case, it seems, determined that those who violated the law by the sale of spirituous liquors and by keeping gambling houses were not fit persons to receive licenses for the sale of wine and beer. In order to enforce this *502very fit and proper regulation, it required the licensees to execute bonds — conditioned that they would not sell spirituous liquors, nor permit gambling. These bonds were required as means for the proper regulation of wine and beer saloons.
II. The opinion of the majority of the court holds that the ordinance, in providing for the bond, prohibits or regulates the sale of spirituous liquors, and the keeping of gambling houses, and prescribes a punishment therefor. This is the error of the opinion. I am at a loss to understand how it can be held that the ordinance forbids or regulates the sale of spirituous liquors and the keeping of gambling houses. It simply provides in effect that those who violate the State law by so doing shall not be licensed to sell wine and beer. This is a regulation of the sale of wine and beer, and not a regulation of the sale of other liquors. This proposition to my mind is plain. To secure the enforcement of the ordinance, and as a means of regulating licensed saloons so that only -such persons as are deemed fit may sell beer and wine, the bond is required. If its conditions are forfeited, the penalty may be recovered. The recovery of' the penalty is not a punishment for the violation of the State law, but is based upon a contract whereby the obligor bound himself to obey and observe the regulations prescribed by the city for wine and beer saloons.
III. If it be conceded that the provisions of the ordinance prescribing a penalty for its violation, by the sale of spirituous liquors and by permitting gambling, is to be regarded as fixing a punishment for an offense under the laws of the State, and is therefore void, it does not follow that this action cannot be maintained. It is not brought to recover the j>enalty prescribed by the ordinance, but is prosecuted upon the bond. If the ordinance be valid in its other provisions relating to the bonds required of licensees, it will be sustained and enforced so far as it is valid. It is a familiar rule that an ordinance partly valid and partly void will be sustained as to all *503its valid provisions; its invalid provisions only will not be enforced.
But in my opinion the penalty of $100, prescribed in an ordinance for its violation, is not to be regarded as a punishment for violations of the law of the State forbidding the sale of spirituous liquors and the keeping of gambling houses. The ordinance provides for the punishment of selling spirituous liquors and permitting gambling i/n wine and beer saloons. The acts forbidden by the ordinance are not offenses under the laws of the State.' Under the ordinance the offense consists in doing the forbidden acts in a wine and beer saloon. No such element of the offenses of selling spirituous liquors and permitting gambling is recognized in the statutes of the State. The ordinance, therefore, does not provide for the punishment of an offense known to the laws of the State.
The views I have expressed upon this point are based upon the facts as stated in the majority opinion, which, I think, hardly presents the ease made by the record before us. The town ordinance provides that recovery may be had upon the bond executed by the licensee for the penalty, $100, prescribed for the sale of spirituous liquors by him. It therefore clearly appears that the ordinance provides for the recovery, not of a fine fixed as a punishment for the violation of the ordinance, but for the penalty of the bond. The distinctions between a fine and a penalty provided for by a contract are obvious.
IY. The doctrines of the foregoing opinion, in my judgment, will lead to mischievous results. They take from the cities and towns the most efficient means of regulating wine and beer saloons. They reach further. Under them a bond executed by a munincipal officer, in pursuance of a city ordinance, for the safe keeping of and accounting for money of the city, cannot be enforced if such officer should embezzle the city’s funds, for the reason that he would be guilty of a crime under the laws of the Stafe, and the recovery of the penalty of the bond would be a punishment of such crime.
*504I have not time to more than present the grounds of my objections to the foregoing opinion. I cannot now support my position by arguments. It is my opinion that the judgment of the District Court ought to be reversed.