
    Alliance v. Joyce.
    
      Sale of intoxicating liquors at retail — Construction of. section 1862, Revised Statutes.
    
    By virtue of the 11th section of the act of March 14, 1886 (83 Ohio Laws, 157), known as the’“Dow Law,” the council of the city of Alliance, in July, 1888, passed an ordinance, to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail. Section 3 of the ordinance provided as follows :
    “Any person, or persons, violating any of the provisions of this ordinance, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars nor more than two hundred dollars, and for each subsequent offense, not less than two hundred dollars nor more than five hundred dollars.” Held:
    
    1. That the above section of the ordinance is not in conflict with section 1862 of the Revised Statutes.
    2. That under section 1862 of the Revised Statutes, a fine prescribed in a municipal ordinance, of more than fifty dollars for any specific offense, or more than double that sum for each repetition of such offense, is not to be deemed in all cases unreasonable; but, the ordinance may, in some cases, be enforced by a fine greater than is specified in section 1862, it being lawful for the court or magistrate, in any suit or prosecution for the recovery of the increased fine, to reduce the same to such amount as may be deemed reasonable and proper by the court or magistrate.
    (Decided January 2, 1892.)
    Error to the Circuit Court of Stark county.
    On the 19th day of July, A. D. 1888, an ordinance was passed by the council of the city of Alliance, in Stark county, a true copy of which is as follows, to-wit:
    “AN ORDINANCE.
    “To prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail.
    “Section 1 — Be it ordained and enacted, That it shall be unlawful for any person, or persons, to keep within the limits of said city, any ale, beer or porter house.
    “Sec. 2 — Be it further ordained and enacted, That it shall be unlawful for any person, or persons, to keep any place within the limits of the city of Alliance where intoxicating liquors are sold at retail, for any purpose, or in any quantity, otherwise than upon prescription issued in good faith by a reputable physician or physicians, in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes. But nothing herein contained shall prevent the manufacturing of intoxicating liquors from the raw material, and the sale thereof at the manufactory by the manufacturer of the same, in quantities of one gallon or more, at any one time.
    “Sec. 3.- — -Any person, or persons, violating any of the provisions of this ordinance, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars ($50) nor more than two hundred dollars ($200), and for each subsequent offense, not less than two hundred dollars ($200), nor more than five hundred dollars ($500).
    
      “Sec. 4 — That an ordinance entitled, “An ordinance to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail,” passed October 6th, 1886, and an ordinance entitled, “An ordinance to amend section 3 of an ordinance, entitled, An ordinance to prohibit, ale, beer and porter houses, and. other places where intoxicating liquors are sold at retail,” passed June 4th, 1888, be, and the same are hereby repealed.
    “Sec. 5 — This ordinance shall take effect, and be in force when ten days shall have elapsed, after its passage and due publication.”
    Under this ordinance, the defendant in error, Robert Joyce, was arrested on the 29th day of September, A. D. 1888, upon a warrant issued by the Mayor of the city of Alliance, for unlawfully keeping within the limits of that city, a place where intoxicating liquors were sold, at retail, in quantities of less than one gallon, otherwise than upon prescription, issued in good faith by a reputable physician or physicians, in active practice, or for known mechanical, pharmaceutical or sacramental purposes, the said Robert Joyce not being a manufacturer of the liquors so sold.
    On the 2d day of October, A. D. 1888, he was tried and found guilty as charged, and the following sentence was pronounced upon him by the Mayor's court, to-wit: “It is the sentence of the court that the defendent, Robert Joyce, pay a fine of two hundred dollars and the costs of the prosecution, and that he stand committed to the Cleveland Workhouse, of Cleveland, Ohio, until the fine and costs are paid, or secured to be paid, or until he be otherwise discharged according to law.”
    The defendant thereupon moved the court for a new trial, which motion was overruled, and a bill of exceptions taken upon the trial of the case, was prepared and filed.
    A petition in error was then filed in the court of common pleas by the defendant in error, and on the 9th day of January, A. D. 1889, the judgment of the Mayor’s court was affirmed.
    A petition in error was thereupon filed in the circuit court of Stark county, to reverse the judgment of the court of common pleas, and on the 11th day of October, A. D. 1890, the circuit court heard the petition in error, and in consideration thereof, found that there was error in the proceedings in this, to-wit: “That the court of common pleas erred in affirming the judgment of the Mayor’s court of the city of Alliance, for that there is error apparent upon the record of the proceedings of the Mayor’s court, to the prejudice of the plaintiff in error, in this, to-wit: in the assessment of the fine of two hundred dollars and committing plaintiff in error to the Cleveland Workhouse until said fine and costs of prosecution were paid. It is therefore considered by the court that the judgment of the court of common pleas, and of said Mayor’s court be reversed and held for naught at the costs of the defendant in error, assessed at $-, for which judgment against defendent in error is rendered. It is further ordered that this cause he remanded to the Mayor’s court of the city of Alliance for execution, and that a special mandate be sent to said court to carry this judgment into execution.”
    The plaintiff in error in this proceeding, The.City of Alliance, seeks to reverse the judgment of the circuit court, and to have the judgment of the court of common pleas of Stark county affirmed.
    
      Powell, Owen, Ricketts & Black, for plaintiff in error.
    Full power is given to municipal corporations to pass ordinances such as the one under consideration in this case, and authority to enforce them by the imposition of fines, penalties, and forfeitures, by Section 1861 of the Revised Statutes of Ohio.
    There is no limitation upon the power of municipal corporations to impose fines, forfeitures, and penalties for the violation of an ordinance. in Section 1861, or in Section 1862; but, if the fine, penalty, or forfeiture exceeds the sum of fifty dollars, a discretionary power is vested in the court, or magistrate trying the case, to reduce the fine or penalty to such amount as may be deemed reasonable, provided the reduction is not below fifty dollars, which is declared by the statute to be a reasonable fine in any case. The discretionary power to reduce the fine or penalty is vested in the trial court and not in the reviewing court. Whenever the trial court has exercised its discretion, and imposed such a fine as may be deemed reasonable, there is no discretion vested in any other court to review the decision of the trial court, at least so far as the amount of the fine is concerned. In this case the trial court deemed two hundred dollars and costs to be a reasonable fine, and we claim that the court, having exercised its discretion, the judgment is not reviewable in error.
    The claim of the defendent that our legislature intended to provide, by Section 1862, that municipal councils should not impose a fine exceeding fifty dollars for a first offense, and one hundred dollars for a repetition of the offense, cannot be maintainéd. Such a construction would defeat the evident purpose of the statute and prevent the court from exercising any discretion in any case as to the amount of fine imposed. Such a construction would render the statute so inconsistent and contradictory as to not onl}- defeat the object of it, but render it absolutely void.
    The ordinance in this case was passed “to prohibit ale, beer, and porter houses,” and not to regulate them. The object of the ordinance was to make such places unlawful and prevent their existence.
    To carry out this purpose it became necessary to impose such penalties as would prevent frequent or continuous violations of the ordinance.
    It is evident to everyone that to prohibit the sale of intoxicating liquors larger penalties must be imposed in some places than in others, and that which would drive one man out of the business would entirely fail in the case of another.
    It will be observed that the statute does not require a court, in any case, to reduce the fine or penalty which has been imposed; nor does the statute confer upon the accused, in any-case, the right to demand a reduction of a fine imposed by the ordinance. It only confers upon the court authority to exercise such power, in case the court sees proper. In other words, the authority conferred upon 'the trial court is a matter of discretion entirely, and the refusal of the court to exercise such discretion cannot be reviewed, nor can the judgment which the court imposes, in its discretion, be reviewed upon procedings in error. In other words, we claim that the fine or penalty imposed by the statute shall be the judgment rendered by the trial court, unless such court sees proper to reduce it; and if the trial court sees proper to permit a recovery for the entire fine, such judgment is final and not the subject of review. Goldsmith v. Hand, 26 Ohio St., 108; Legg v. Drake, 1 Ohio St., 286; People v. N. Y. C. R. C., 29 N. Y., 431.
    It will be seen that there is nothing in the record of this case to indicate that the court did not exercise its discretion, and did not think that, in its judgment, a fine of $200 was reasonable.
    If, therefore, it comes within the rule that where a power to exercise a discretion on the part of the court is admitted, and the question raised as on the propriety of the exercise of the discretion upon the facts of the particular case, it cannot be reviewed upon error. Powell on Appelate Proceedings, 164, 165, 197.
    Again, we claim that if the judgment of the trial court in fixing the amount of the fine is subject to be reviewed upon error, the reviewing court cannot reduce the fine below the amount fixed by the statute, to-wit: fifty dollars. In this case the trial court, if it had thought proper, could have reduced the fine to fifty dollars, but not below that amount. Of course the reviewing court would have no more power upon this point than the trial court, and, therefore, when the circuit court set aside the entire fine instead of reducing it to fifty dollars, error was undoubtedly committed.
    
      Wm. C. Pippitt, for defendant in error.
    There is no better established legal proposition than that municipal corporations have such rights, powers and privileges, only, as are conferred upon them by law. The charter, or the general law under which they exercise their powers, is their constitution, in which they must show authority for the acts they assume to perform. They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated and circumscribed powers, acting by a delegated authority, and while the state legislature may exercise such powers of government, coming within the designation of legislative power, as are not expressly or impliedly prohibited by the organic law of the state, the councils of the municipalities can exercise those only which are expressly or impliedly conferred by statute, and then only subject to such regulations and restrictions as are imposed by the statute delegating the authority; they cannot define for themselves their own rights, privileges and powers, they must look to the state for such charters of government as the legislature shall see fit to provide, and they cannot prescribe for themselves the details.' Municipal' ordinances must be consistent with the act or charter of incorporation, not conflicting with it, either in letter or manifest intention. They must also be harmonious with the general statutory and common law of the state which they cannot, without express authority in the act of incorporation, supercede. Bishop on Statutory Crimes, Sec., 22; Dillon on Munic. Corp./Sec. 300; Cooley’s Const. Dim., 191; City of Canton v. Nisi, 9 Ohio St., 439; Thompson v. City of Mt. Vernon, 11 Ohio St., 688; Booth v. Town of Woodbury, 32 Conn., 118; Allen v. Inhabitants of Edgewood, 53 Me., 446; Leavenworth v. Norton, 1 Kansas, 432; Kyle v. Malm, 8 Ind., 34; Bill of Rights, Section 9.
    Thus we have our legislature, in harmony with its constitutional restrictions, providing in plain and unambiguous words, by the provisions of section 1862, fifty dollars as the sum beyond which municipal councils cannot go, in providing a penalty for a first offense, and one hundred dollars as a limit to the penalty on repetition of the offense.
    But should the reasons already given for the construction of Section 1862, claimed on behalf of defendant in error, lack conclusiveness in the estimation of any, for the benefit of such I call attention to the rules of construction applicable herein, and of these: The rule that penal laws are to be construed strictly, has been said to be not much less old than construction itself. Bishop’s Crim. Daw, Vol. 1, Secs. 224, 225, 249, 250; United States v. Wittberger, 5 Wheat. 75, 95, 96; State v. Stephenson, 2 Bailey, 334; State v. Mc-Omber, 6 Vt., 215; Leonard v. Bosworth, 4 Conn., 421; United States v. Wigglesworth, 2 Story, 369; The People v. Howell, 4 Johns, 229.
    Again, the legislature having provided, in said Section 1862, that a fine, for a first offense, in any sum from fifty dollars, down the pathway of mercy to a nominal fine, shall be deemed reasonable, have designated that range as the realm of reasonability, and thus circumscribed the power of municipal councils, in the imposition of penalties, to its domain. And this becomes more apparant when we apply the familiar maxim to its interpretation, that “ Exprés sio unius est, exclusio alterius,” or in other words, the express mention of one thing implies the exclusion of another. Broom’s Regal Maxims, 592, 593; Head v. I?isu7rance Company, 2 Cranch (U. S.,) 127; Dillon on Municipal Corp. Secs. 278, 274, 275, 277; Grand Rapids v. Hughes, 15 Mich., 54; Hart v. Mayor, 9 Wend., 571; Courson's Executors v. Courson, 19 Ohio St., 454.
    Another rule of construction requires all legislation in derogation of the common law to be strictly construed. Hobb, 298; Plowd., 206, b; Kent’s Com., Vol. 1, 467, n b.
    The foregoing principles are applicable to this case, for the acts with which defendant in error stands charged, are criminal, neither by the common law nor the statutory laws of Ohio, and become criminal in character, only when the municipal council of the City of Alliance have lawfully exercised- the power delegated to them by the eleventh section of the Dow Raw, by which they may make them malum pro-hibitum, and provide a penalty thereto, in the manner and within the limits prescribed by sections 1861 and'1862 of Revised Statutes.
    By the passage of section 3 of the ordinance, the council of the City of Alliance, has attempted to adopt an entire new measure of penalties, from the one handed down and delegated to them by the legislature of the State of Ohio, in section 1862, of the Revised ¿Statutes.
    
      It can not be said that fines in excess of fifty dollars, for the first offense, and one hundred dollars for the second offense, may be reasonable also; for if so, then the mention of fifty dollars in the one case, and one hundred dollars in the other, is a mere idle use of words, a thing not to be attributed to the legislature, and especially not, in criminal legislation.
    We cannot go to the common law and derive authority to impose a penalty in this case for the very good reason, that the penalty at common law for misdemeanors was fine or imprisonment, or either of them, and if such be the penalty, to be administered within the discretion of the court, then imprisonment being a part of the penalty liable to be imposed, the defendant in error would be entitled to a constitutional trial by jury, unless waived in writing. The record shows no such waiver and such trial, hence, any conviction without the intervention of a jury, or a waiver thereof, would forbid basing the penalty on the usages and customs of the common law.
    View the situation from whatever standpoint we may, the conclusion is irresistable, that the germ of the principle that actuated the legislature in designating the sum of fifty dollars in the one case, and double that sum in the other, is to be found in section 9 of our state constitution which forbids the imposing of excessive fines, that their object and intent was to guard against the imposition of excessive fines by municipal corporations, and not a restriction on mercy and leniency, as the council of the City of Alliance seems to have supposed. Bishop on Statutory Crimes sec. 21; Bishop’s Criminal Raw sec. 719; Smith v. State, 12 Ohio St., 469.
    It is also to be observed that the fine of two hundred dollars imposed on defendant iñ error, by the Mayor’s Court of the City of Alliance, was for a first offense. Bishop’s Statutory Crimes, sec. 240-981; Bishop’s Criminal Procedure Vol. 1, sec.293; Commonwealthsr.Miller, 8 Gray (Mass.) 484.
    The action of the municipal court can not be sustained, upon the ground that the amount of the fine was a matter resting within its discretion, and therefore not reviewable on error, for the very good reason that that which affects injuriously a right of a party, is never the subject-matter of discretion, and this infringes the constitutional right to acquire and hold property. Segg v. Drake, 1 Ohio St., 289.
    That the judgment rendered against the defendant in error is erroneous and voidable, will appear by reference to the holding of this court in the case of Exparte, Van Hagan, 25 Ohio St., 432; Shepherd v. The People, 25 N. Y., 407.
    Eet us now turn to the last clause of section 1862 of the Revised Statutes of Ohio.
    Here we see that the legislature has come to the assistance of the court and vested it with authority, pointed out its pathway and defined its duty, in cases where the municipal council have exceeded their authority, and in the language of the statute imposed a greater fine “than as above specified,” or in other words, have imposed'a greater fine than fifty dollars for the first offense. Alderman Blackwell’s case, 1 Vem., 152; King v. Barlow, 2 Salk., 609; King v. Inhabitants of Derby, Skinner, 370; 'King v. Mayor of Hastings, 1 Dowl., and Ry., 148; Newburg Turnpike Co. v. Miller, 5 Johns’ Ch., 113.
    Now, inasmuch as fines for a first offense, that do not exceed the sum of $50, are the only ones that are undoubtedly and beyond a peradventure within the haven of safety, established by the legislaüire, and the only ones which at all hazards, must be deemed reasonable, and undoubtedly free from the imputation of being unreasonable, it was the duty of the mayor’s court of the city of Alliance to keep within said limit and not venture beyond the jurisdiction conferred. Bell Center v. Welsh, Cincinnati Raw Bulletin, Vol. 24, 177.
    The duty of reviewing courts, in cases like unto this, is very clearly portrayed by the action of the circuit, and the Su-pregie Court of Illinois. Petersburg v. Metzgar, 21 Ill., 204.
   DickmaN J.

On the 19th day of July, 1888, the council of the city of Alliance, passed an ordinance, to prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail. The defendant in error, Robert Joyce, in October, 1888, was convicted of violating the provisions of that ordinance, and was sentenced by the Mayor’s court to pay a fine of two hundred dollars and the costs of the prosecution, and to stand committed to the Cleveland Workhouse, until the fine and costs were paid, or secured to be paid. The question arises, whether the council had authority,- under the'statute law of the state, to enforce its ordinance by the imposition of a fine to that amount.

The authority to pass an ordinance prohibiting places where intoxicating liquors are sold at retail, was derivable from section 11 of the act passed May 14, 1886 (83 Ohio Raws 157), entitled “An act providing against the evils resulting from the traffic in intoxicating liquors,” and known as the “ Dow Raw.” That section provides that, “Any municipal corporation shall have full power to regulate, restrain and prohibit ale, beer and porter houses, and other places where intoxicating liquors are sold at retail for any purpose, or in any quantity,’’.otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, or at the manufactory by the manufacturer of the same.

Such general power vested in the municipality to prohibit places where intoxicating liquors are sold at retail, is, in itself, sufficient to authorize the adoption of an ordinance adequate to the object proposed. As an ordinance without a penalty would be nugatory, municipal coporations have an implied power to provide for their enforcement by reasonable and proper fines against those who violate them. Fisher v. Harrisburg, 2 Grant (Pa.) cas. 291; Barter v. Commonwealth, 3 Pa. (Pen. & W.) 253; Trigally v. Memphis, 6 Coldw. (Tenn.) 382.

But such power does not rest in implication alone. By Section 1861, of the Revised Statutes, it is provided as follows: “By-laws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures, and penalties, on any person offending against any such by-law or- ordinance; and the fine, penalty, or forfeiture may be prescribed in each particular by-law or ordinance, or by a general by-law or ordinance made for that purpose; and municipal corporations shall have power to provide, in like manner, for the prosecution, recovery, and collection of such fines, penalties, and forfeitures.”

Standing alone, this section imposes no limitation upon a municipal corporation’s passing an ordinance making the fine for an offense discretionary within fixed reasonable limits, whereby, the tribunal might be enabled to adjust the fines to the circumstances of the particular case. And the section, taken by itself, would be no barrier, to the passage of an ordinance like that of the city of Alliance, imposing a fine, upon conviction, of not less than fifty dollars, nor more than two hundred dollars for the first offense.

But, it is urged, that the legislature, by the provisions of Section 1862 of the Revised Statutes, has established the sum of fifty dollars as the maximum, beyond which municipal councils cannot go, in fixing a pecuniary punishment for a first offense.

That section reads as follows: “Fines, penalties, and forfeitures which do not exceed the sum of fifty dollars for any specified offense, or violation of the by-law or ordinance, or double that sum for each repetition of such offense or violation, or which do not exceed ten dollars for each day where the thing prohibited .or rendered unlawful is, in its nature, continuous in respect to time, shall not be deemed unreasonable; but where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper, and to permit a recovery or render judgment accordingly.”

The interpretation sought to be given this section would make it provide, that no city council shall impose a fine of more than fifty dollars for the first violation of an ordinance; but, if a greater fine should be imposed by the council, the court or magistrate may, in the exercise of a discretionary power, reduce the same to such amount as may be deemed reasonable — an enactment inconsistent and anomalous.

Upon the reading of this section it will occur, that there is a class of minor offenses, coming within the domain of municipal legislation, for which, a fine of fifty dollars, and much less, would be deemed amply sufficient; while, there are offenses against public morals and good government, prohibited bjr city ordinances, for the' enforcement of which a maximum punishment by fine beyond fifty dollars would be altogether proper and expedient. Thus, it is the common experience, that a law to prohibit places where intoxi-icating liquors are retailed, cannot be made effective without a stringent penalty for its violation. And hence, the legislature has provided by section 2 of the “Focal Option” law, passed March 3, 1888 (85 Ohio Raws, 55), that if at any election held under the provisions of the act, a majority of the votes cast by the qualified electors of any township, shall be against the sale of intoxicating liquors as a beverage, “it shall be unlawful for any person within the limits of such township * * * to sell, furnish or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away or furnished; and whoever sells, furnishes or gives away any intoxicating liquors as a beverage, or keeps a place where such liquors are kept for sale, given away or furnished, shall be fined not more than five hundred dollars, nor less than fifty dollars, and imprisoned in the county jail not exceeding six months.”

Under section 1862, fines may be imposed within fixed limits, as for example, between one dollar 'and fifty dollars, for minor offenses, or for violations of municipal ordinances concerning local affairs in respect of matters not criminal in their nature. And between such limits, an ordinance may leave it discretionary with the court or magistrate, to impose a fine of not less than a designated minimum, and not more than a designated maximum sum. If the fine does not exceed the sum of fifty dollars for any specified offense or violation of the ordinance, in the language of the statute, “ it shall not be deemed unreasonable.” But, the section of the statute under consideration, contains no words forbidding the enforcement of an ordinance by a fine in excess of fifty dollars for the first offense. On the contrary, the reference to an imposition of a greater fine would indicate, that in some instances, it might become proper and necessary for municipal councils to attach a severer punishment than a fine of fifty dollars, as in the case at bar, in which the ordinance provides, that any person violating any of its provisions, shall, upon conviction thereof, be fined for the first offense, not less than fifty dollars nor more than two hundred dollars. And where it is provided in the statute, that a fine not exceeding fifty dollars “shall not be deemed unreasonable,” it would not follow, that a fine greater than that sum for an offense of a serious nature, would be deemed unreasonable for the enforcement of a municipal ordinance.

It would seem, that by reason of the probable need of an hncreased fine in certain cases, the legislature incorporated in section 1862 the provision we have before cited, that, “where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper.”

But to what amount shall such reduction be made? If in the ordinance a fine of two hundred dollars for the first offense is imposed, it is not required that the fine shall be reduced to fifty dollars, as a reasonable or proper amount, but it will be within the meaning of the statute, if the court or magistrate either inflicts the full penalty, or reduces it to an3' um between fifty dollars and the maximum of two hundred dollars.

A reduction of the fine is not made compulsory, but is left entirely to the discretion of the court or magistrate. The statute declares that it shall be lawful to reduce the same to such amount as may be deemed reasonable and proper. That is, there will be no legal obstacle or objection to the reduction if it shall be deemed advisable; and it will not be unlawful if the court or magistrate shall decline to reduce, and enforces the ordinance by the highest fine thereby imposed. The discretion vested in the court or magistrate to thus reduce the fine would preclude the idea of requiring a reduction to a particular sum, or of establishing any other standard of what would be deemed reasonable and proper, than the judgment and discretion of the court or magistrate. Where a greater fine is imposed than that specified in section Í862, the statute does not determine what shall or shall not be considered unreasonable, but confides in the judicial tribunal to mitigate the punishment or not, as wisdom and justice may dictate.

It is contended in behalf of. the defendant in error, that in enacting that a fine not in excess of fifty dollars for any violation of an ordinance shall not be deemed unreasonable, it was the design of the statute to establish a criterion of what would be reasonable, and to place a check upon municipal legislation, and restrain municipal corporations from violating the constitutional inhibition against imposing excessive fines. And section 3 of the ordinance under consideration is pronounced invalid, and a fine of two hundred dollars for the first offense, it is claimed, is unreasonable and unauthorized by the statute. An irreducible fine above fifty dollars might, in some instances, prove unreasonable. But where a discretion is lodged in the court, in the light of all extenuating circumstances, if any, to reduce the penalty to a sum commensurate with the offense, the offender is not without protection against the excessive fines forbidden by the constitution. As said by Judge Cooley on the constitutional requirement, “Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court.” Con. Rim. 6th Ed. 401. It is a discretion to be judicially exercised; and while cases may occur in which the punishment would be unreasonable, though not beyond any limit fixed by statute, in contemplation of law, a just mitigation of the penalty may safely be left to the sound discretion of the judge. The Mayor’s court sentenced the defendent in error to pay a fine of two hundred dollars, and the costs of the prosecution — the highest fine for a first violation of the provisions of the ordinance. But it is to be presumed that the court, actuated by a sense of justice, under the guidance of its best judgment, and in the exercise of the discretion reposed in it by the legislature, regarded a fine of two hundred dollars as not disproportioned to the offense. Municipal councils, as wé have seen, not being limited by section 1862 of the Revised Statutes, to the imposition of fines which shall not exceed fifty dollars for the first offense, and the court or magistrate being clothed with power to reduce the same- to an amount that may be deemed reasonable and proper, we cannot hold the penal section of the ordinance of July 19, 1888, to be without statutory authority and invalid.

The corpus delicti having been proved, and the Mayor’s court having, in the light of what was just and proper under the circumstances, and in the exercise of its plain discretionary power, fixed the amount of the fine to be paid by the defendant in error at two hundred dollars, we find no error in the action of the court in that regard, and we discover in the record no good ground for the circuit court’s reversing the judgment of the court of common pleas and of the mayor’s court. In settling the amount of the fine, there was no abuse of discretion on the part of the mayor’s court which was reviewable on error. “The exercise of an honest judgment, however erroneous it may seem to be, is not an abuse of discretion. Abuse of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.” Hogeboom, J. in The People v. The N. Y. C. R. R. Co., 29 N. Y. 431. For aught that is shown to the contrary in the record, the peace and order, and moral welfare of the community demanded that the court should impose the highest fine prescribed by the ordinance, in order to stop the sale of intoxicating iiquors at retail, at the place kept by the defendant in error. Judgment’s of courts oí competent jurisdiction are presumed to be well founded, and judges are presumed to do nothing cause-lessly or maliciously. Best Pres. 68; Sutton v. Johnstone, 1 T. R. 503. It is stated by Mr. FREEMAN in his treatise on Judgments (§272), as the generally recognized rule at the present day, that in the conclusive effect of every final adjudication is included every matter material to the disposition of the controversy, as made by the pleadings, when the cause is submitted for decision. It does not appear to the contrary iñ the record, and it is to be presumed in favor of the judgment against the defendant in error, that all the facts existed necessary and material to support it.

In our opinion, the judgment of the circuit court should be reversed, and the judgment of the court of common pleas affirmed.

Judgment accordingly.

Bradbury, J.,

(dissenting):

I do not concur in the construction given to section 1862, Revised Statutes, by a majority of the court.

The object of this section, it seems to me, was to place within well defined limits the power of municipal corporations to impose fines for violations of its ordinances. By the settled rules of the common law, such corporations can only impose reasonable fines. The constitution of the state, article 1, section 9, also prohibits the imposition of excessive fines by any authority. The common law, however, affords no certain rule, and tlje constitution none whatever, by which to determine in any given case, whether a fine is unreasonable or excessive or not. This mischief is cured by the construction I would give to that section, which reads as follows:

“Section 1862 — Fines, penalties, and forfeitures which do not exceed the sum of fifty dollars for any specified offense, or violation of the by-law or ordinance, or double that. sum for each repetition of such offence or violation, or which do not exceed ten dollars for each day where the thing prohibited or rendered unlawful is, in its nature, continuous in respect to time, shall not be deemed unreasonable; but where in any by-law or ordinance a greater fine, penalty, or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper, and to permit a recovery or render judgment accordingly.”

Tbe minuteness and evident care with which this section prescribes what fines shall not be deemed unreasonable, go far to show that any sums in excess of them should be deemed unreasonable.

A statute should not be construed so as to annul it; this is practically done by the construction which the majority of the court place upon the section now under consideration.

The power of municipalities and their magistrates to impose fines under that construction of the section is as ill-defined, uncertain and unlimited as if the statute did not exist.

A correct construction of this section would limit the power of municipal corporations, in imposing fines, to such amounts as the legislature has declared not unreasonable. The legislative purpose was to prescribe a rule of conduct to municipal authorities, not to declare a fact, and when it said that, up to certain sums carefully adjusted to varying circumstances, fines should not be deemed unreasonable, it should be held to intend to limit fines within those sums.

The subsequent provision is to guard against the escape of the guilty where the council, through inadvertence or otherwise, in adopting an ordinance, has prescribed a greater penalty than allowed by law. In such case the magistrate, or court before whom the trial is had, may reduce the fine to such amount as may be deemed reasonable, not in the unlimited discretion of such magistrate or court, but by the law as declared by the legislature in the section under consideration; thus substituting the certain rule of the statute for the arbitrary will 'of the magistrate or court.

AViixiams, C. J., concurs in this dissenting opinion.  