The opinion of the court was delivered by
Scudder, J.The prosecutor, having been sued for violation of this ordinance, seeks the aid of the court to have it annulled. Without considering the other provisions of the ordinance, we feel constrained, under the authority of State v. Zeigler, 3 Vroom 262, to hold this ordinance void. The charter confers on the common council certain powers and duties to be enforced by by-laws and ordinances, among other things for suppressing disorderly or gaming-houses and groggeries, by enacting penalties for the violation thereof, either by imprisonment not exceeding seven days or by fine not exceeding $50. Pamph. L. 1868, p. 79, § 8. The case above cited has decided that under such right to impose a penalty the charter gives to the council, and not to the justice or a jury, the duty to determine the exact amount of the penalty or punishment, which shall be imposed within the limitation of time and amount named in the statute. Here the jjenalty that may be imposed by the ordinance is imprisonment for a period not exceeding seven days, leaving it to the justice to say for how many days.
The ordinance must be set aside for this error, but without costs.