#### The City of Hudson, Appellant, *v.*William Granger, Defendant.

(Supreme Court, Albany Special Term,

April, 1898.)

Violation of a city charter — When punishable criminally only.

A violation ¡of a city ordinance made punishable by a maximum fine, or in the alternative, by certain imprisonment; is. properly prosecuted as 'a crime, and the fact that the charter permits the common council to sue, in the name of the city, any person violating any city ordinance “ to recover the penalties therein prescribed,” does not change the character of .the proceeding from criminal to civil.

Such a construction is particularly proper where the" entire proceeding has been conducted according to criminal procedure.

*402This is an appeal from a judgment of the City Oourt of the city of Hudson, acquitting the defendant of a charge of having violated a city ordinance, and is entitled in the return" as above. A certificate of disqualification having been duly filed by the county judge the appeal comes here for hearing and decision.

Samuel B. Coffin, for appellant.

Edward F. McCormack, for defendant.

Fursman, J.

The charge against the defendant is „the violation of an ordinance of the city of Hudson, forbidding any person not designated or employed.- for that purpose by the common council from interfering in any manner with the fire alarm system of the city. The proceeding taken, before the city judge was in no just sense a civil action. It was not of such a character that a judgment could be rendered, and an execution issued thereon as in -a civil action. The whole conduct of .the case from beginning to end followed the methods of criminal procedure, and was not in the least in conformity to the practice in civil actions. There was no complaint or answer; there was instead an “ Information ” of the, precise character defined in section 145 of the Code of Criminal Procedure. The warrant issued was in 'form a criminal and not a civil warrant. It did not require the defendant to answer the city of Hudson, as in a civil action. It is addressed, to “ any peace officer,” etc., and commands that the defendant when arrested shall be brought before the magistrate issuing it, or-in case of his; absence, etc., “ before the nearest or most accessible magistrate in the county,” a requirement that is peculiar to criminal and not at all applicable to civil warrants. The return shows that on being brought before the magistrate the. defendant entered a plea of not guilty,— a plea entirely unknown in civil actions,--- and on the information, and this plea he was tried and acquitted. Had he been convicted, an execution could not have been issued as in civil actions, but a warrant' of commitment, as in Criminal cases, would have been the only possible means by which to enforce the judgment. Every step taken was applicable to a criminal procedure, •and none were applicable to a civil action. Moreover, the proceeding was not to recover 'a penalty, but "to cause to be imposed upon the defendant a fine, and in default of payment, imprisonment “ not exceeding one day for each dollar ” of the fine imposed “ pen*403alty ” and *“*fine ” are not in law the same. A penalty is always .recoverable in a civil action; a fine never is. A penalty, when recovered, goes to the party suing; a fine to the people, though, in order to take fin^s imposed for violating ordinances of the city of Hudson, out of this general rule, an express provision was inserted in the charter requiring them to he paid to the city treasurer. A fine is defined in law to he “ a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor.” Bouvier, title, “ Fine.” This definition is wholly inapplicable to a judgment in a civil suit. Now, the ordinance in question does not impose any penalty for its violation, nor does the city charter impose any. Section 65 provides that any violation of any ordinance *“*shall be punishable by a fine not exceeding $25, or by imprisonment until the same shall be paid, not exceeding,” etc. This is not a penalty recoverable in a civil action, but a punishment for crime. A penalty is fixed and absolute, and when recoverable the recovery must be for the full amount. Nothing is left to the discretion of the court. But, under this section, the fine to be imposed is left wholly to the discretion of the court within the maximum limit of $25. The court may exercise mercy towards a person convicted under it, and fine him only $1, or even one cent. It is absurd to say that such a discretion could be exercised in a civil action to recover a penalty. It is true that section 63 provides that the common council may bring suit in the name of the city against any person violating any city ordinance *“*to recover the penalties therein prescribed; ” but there is no penalty such as may be recovered in a civil action anywhere prescribed either in the charter or the ordinance itself. The proceeding, under section 65, is essentially and necessarily criminal in character. A civil action cannot be maintained under it. The only proper procedure is of a criminal nature, and that was pursued. The cases cited by the learned counsel for the appellant are not in conflict with these views. In Wood v. City of Brooklyn, 14 Barb. 425, the ordinance violated provided that every person offending against it should “ forfeit and pay the sum of $50 for each and every offense.” In the City of Buffalo v. Schliefer, 25 Hun, 275, the ordinance imposed a penalty of $10 for its violation, and the warrant required the defendant to answer the city of Buffalo. In all such cases the penalty is to be collected by a civil action. In the present case, however, there is no penalty that may be so recovered; there is only a discretionary punishment that may be inflicted as for the commission of a crime. Hpon a *404judgment for a penalty in a civil" action, an execution may issue upon which property may he seized, hut upon a judgment of conviction, under section 65, property cannot be taken. If the defendant refuses to pay the fine imposed, the only alternative is imprisonment. Code Grim. Pro., § 487. This, therefore, was in every particular "a criminal and not a civil proceeding, and was the only proceeding that could properly be brought. It follows that this appeal must he dismissed, and it is, therefore, unnecessary to decide the other questions in the case.

Appeal dismissed, with costs.