case of failure to pay a fine imposed,347 and in still further and 958, 20 L. R. A. 79; State v. Ludwig, 21 Minn. 202. Where the power is conferred upon corporate authorities to impose fines or penalties for the unauthorized sale of intoxicating liquors they are authorized to impose the same penalties fixed by general law for the commission of the same offense. State v. Grimes, 83 Minn. 460, 86 N. W. 449; City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202. If the fine imposed is within the limits fixed by the city charter, the question of its reasonableness will not be considered by the courts. Haynes v. City of Cape May, 50 N. J. Law, 55, 13 Atl. 231; McGear v. Woodruff, 33 N. J. Law, 213; Howe v. Treasurer of Plainfield, 37 N. J. Law, 145; Landis v. Borough of Vineland, 54 N. J. Law, 75; Salter V. City of Bayonne, 59 N. J. Law, 128; Village of Bellefontaine V. Vassaux, 55 Ohio St. 323; Grossman v. City of Oakland, 30 Or. 478, 36 L. R. A. 593; Smith v. Hutchinson, 8 Rich. Law (S. C.) 260; City of Yankton v. Douglass, 8 S. D. 441; Ex parte Bowen, 34 Tex. Cr. R. 107; Ogden City v. Crossman, 17 Utah, 66, 53 Pac. 985; Bolton v. Vellines, 94 Va. 393; Falsetto v. City of Seattle, 18 Wash. 509. See, also, City of St. Louis v. R. J. Gunning Co., 138 Mo. 347; Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506. A penalty imposed for the violation of an ordinance is not a "fine" under Rev. St. Wis. 1898, § 3294. In New Jersey, some authorities hold that under a charter power to enforce ordinances by penalties not exceeding a certain prescribed limit, an ordinance fixing a maxi mum and minimum penalty is bad for uncertainty. See State v. Žeigler, 32 N. J. Law, 262; Smith v. Treasurer of Clinton, 53 N. J. Law, 329, 21 Atl. 304; Landis v. Borough of Vineland, 54 N. J. Law, 75, 23 Atl. 357. But see Atlantic City v. Crandol, 67 N. J. Law, 488, 51 Atl. 447, holding that under a special charter, a council could fix a maximum penalty and permit the trial court to exercise its discretion in adjusting the punishment to the particular case. See, also, Borough of Belmar v. Barkalow, 67 N. J. Law, 504, 52 Atl. 157, sustaining the validity of a discretionary punishment within a maximum limit. 347 Harper v. City of Attalla, 123 Ala. 524, 26 So. 128; Ex parte Smith (Cal.) 29 Pac. 785; Ex parte Green, 94 Cal. 387; State v. Fisher, 50 La. Ann. 45; Cobb v. City of Dalton, 53 Ga. 426; Harris v. City Council of Augusta, 100 Ga. 382; In re McCort, 52 Kan. 18; Ex parte Kiburg, 10 Mo. App. 442; In re Miller, 44 Mo. App. 125; Ex parte Hollwedell, 74 Mo. 395; In re Langston, 55 Neb. 310, 75 N. W. 828; Bregguglia v. Borough of Vineland, 53 N. J. Law, 168, 20 Atl. 1082. The power to enforce the collection of a fine imposed for the violation of an ordinance through judgment does not exist unless especially granted by statute. Papworth v. City of Fitzgerald, 106 Ga. 378, 32 S. E. 363. An opportunity must be given to pay the fine imposed before a term of imprisonment can be lawfully imposed. See, also, as holding the same, Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630. more extreme cases, the right of imposing a fortfeiture.348 The extent of such penalties are strictly limited by charter or statutory provisions. 349 The latter, especially, is obnoxious to courts, and municipal provisions effecting one are rarely sustained and only when the subject or object itself of the forfeiture is of such a character or is put to such use as to constitute a serious and possibly a continuing menace to the peace, order, and good morals of the community.350 Where the power exists to impose a forfeiture, the right to waive it impliedly arises.351 § 554. Mode of enforcing ordinances; trial by jury. A peace ordinance is usually enforced by the arrest of the offender, and a hearing in some court of competent jurisdiction in proceedings brought by the municipality.352 Where the gravaman 348 Grover v. Huckins, 26 Mich. 476; Hillsborough County v. City of Manchester, 49 N. H. 57; Bulkly v. Orms, Brayt. (Vt.) 124. 349 Mobile & O. R. Co. v. People, 24 Ill. App. 250; Fairbanks v. Town of Antrim, 2 N. H. 105; Pike v. Madbury, 12 N. H. 262; Allaire v. Howell Works Co., 14 N. J. Law (2 J. S. Green) 21; Zylstra v. Charleston Corp., 1 Bay (S. C.) 382; Vestry of St. Luke's Church v. Mathews, 4 Desaus. (S. C.) 585. See, also, authorities cited generally under this section. McNeil v. State, 29 Tex. App. 48, 14 S. W. 393. 350 Willis v. Legris, 45 Ill. 289; Darst v. People, 51 Ill. 286; Gosselink v. Campbell, 4 Iowa, 296; McKee v. McKee, 47 Ky. (8 B. Mon.) 433; Varden v. Mount, 78 Ky. 86; Judson v. Reardon, 16 Minn. 431 (Gil. 387); Johnson v. Daw, 53 Mo. App. 372; Staates v. Inhabitants of Washington, 44 N. J. Law, 605. The forfeiture of a license is not warranted under authority to impose a fine or imprisonment as a penalty for the violation of an ordinance. Cotter v. Doty, 5 Ohio, 395; Phillips v. Allen, 41 Pa. 481; Miles v. Cham berlain, 17 Wis. 446. Ordinance providing for the impounding and sale of animals found running at large. State v. Newman, 96 Wis. 258, 71 N. W. 438. 351 Chicago City R. Co. v. People, 73 III. 541; Common Council of Indianapolis V. Fairchild, 1 Ind. (Smith) 122; Gulick v. Connely, 42 Ind. 134; Gosselink v. Campbell, 4 Iowa, 300; Hubbard v. Norton, 28 Ohio St. 116. 332 People v. George, 26 Colo. 475; McNulty v. Connew, 50 Ind. 569; State v. Fisher, 50 La. Ann. 45; State v. Faber, 50 La. Ann. 952; Village of Vicksburg v. Briggs, 85 Mich. 502, 48 N. W. 625. A warrant, however, should follow statutory provisions, if such exist. Shafer v. Mumma, 17 Md. 331; State v. Robitshek, 60 Minn. 123, 61 N. W. 1023, 33 L. R. A. 33; Kansas City v. O'Connor, 36 Mo. App. 594. Village of Oran v. Bles, 52 Mo. App. 509. The arrest may be made by a peace officer without a warrant when the offense is committed in his presence. See, also, as holding the same principle, Bryan v. of the offense is the violation of some municipal ordinance, beca use of the class of offenses dealt with and the urgent necessity for a speedy hearing and punishment, the procedure is informal in its character,353 and the offender is not entitled to the constitutional right of a trial by jury.354 This question is interesting and important and has given occasion for many decisions by the courts. The weight of authority sustains the principle given and these rulings are based upon the trivial and petty character of the offense and the urgent necessity as stated above for a speedy Bates, 15 Ill. 87; Scircle v. Neeves, 47 Ind. 289, and Roddy v. Finnegan, 43 Md. 490. Village of Green City v. Holsinger, 76 Mo. App. 567; City of Brownville v. Cook, 4 Neb. 101. A proceeding for the violation of a city ordinance must be brought in the name of the state as required by the constitution and not that of the city concerned. Hennessy v. Connolly, 13 Hun (N. Y.) 173; People v. Van Houten, 13 Misc. 603, 35 N. Y. Supp. 186; City of Hudson v. Granger, 23 Misc. 401, 52 N. Y. Supp. 9. Such a hearing is criminal in its character and no appeal will lie from a judgment of acquittal. City Council of Abbeville v. Leopard, 61 S. C. 99; State v. White, 76 N. C. 15; City of Spokane v. Robison, 6 Wash. 547. It is not necessary that prosecutions for the violation of an ordinance be brought in the name of the state, the constitutional provision not applying to such prosecutions. See, also, City of Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324. 353 Wheeler v. City of Plymouth, 116 Ind. 158; State v. City of Baton Rouge, 40 La. Ann. 209; City of Leavenworth v. Booth, 15 Kan. 627; State v. Boneil, 42 La. Ann. 1110, 10 L. R. A. 60; Ex parte Washington, 10 Mo. App. 495; City of Gallatin v. Tarwater, 143 Mo. 40, 44 S. W. 750; McGear v. Woodruff, 33 N. J. Law, 213; Haynes v. City of Cape May, 50 N. J. Law, 55; Weller v. City of Burlington, 60 Vt. 28. 354 United States v. Green, 8 Mackey (D. C.) 230; Williams v. City Council of Augusta, 4 Ga. 509; Floyd v. City of Eatonton Com'rs, 14 Ga. 354; Hill v. City of Dalton, 72 Ga. 314; Wagner v. City of Rock Island, 146 Ill. 139, 21 L. R. A. 519, affirming 45 Ill. App. 444; City of Lansing v. Chicago, M. & St. P. R. Co., 85 Iowa, 215; City of Monroe v. Hardy, 46 La. Ann. 1232, 15 So. 696; City of Monroe v. Meuer, 35 La. Ann. 1192; Shafer v. Mumma, 17 Md. 331; State v. Glenn, 54 Md. 572; Giardina v. City of Greenville, 70 Miss. 896; Delione v. Long Branch Com'rs, 55 N. J. Law, 108; Roderick v. Whitson, 51 Hun, 620, 643, 4 N. Y. Supp. 112; Mathews v. Tripp, 12 R. I. 56. "Trial by jury is a well known kind of trial. The right of trial by jury, as secured by the constitution, is in our opinion, simply the right to that kind of trial. And the right remains inviolate so long as the jury continues to be constituted substantially as the jury was constituted when the constitution was adopted, and so long as all such cases as were then triable * without any restrictions or conditions which materially hamper or burden the * trial.355 The offenses legislated against by municipal corporations are not regarded as crimes or of such a character as to bring them within the constitutional provision in respect to the right of a trial by jury and those familiar with the conditions surrounding police courts and their volume of business will recognize the expediency of adopting a rule of law which affords a reasonable dispatch in the transaction of their affairs.356 A municipality, however, cannot create a civil liability for a failure to perform a duty imposed by an ordinance passed through the exercise of its police powers.357 § 555. Enforcement by civil action. The other mode of enforcing an ordinance is through the agency of a civil action brought against the offending party and designed to recover a penalty fixed by law.358 These actions are civil in their right." State v. Williams, 40 S. C. 373; State v. Prescott, 27 Vt. 194; Lincoln v. Smith, 27 Vt. 328. 355 Natal v. Louisiana, 139 U. S. 621, affirming State v. Natal, 39 La. Ann. 439; Hunt v. City of Jacksonville, 34 Fla. 504; State v. City of Topeka, 36 Kan. 76; In re Kinsel, 64 Kan. 1, 56 L. R. A. 475; State v. Grimes, 83 Minn. 460; City of St. Louis v. Stern, 3 Mo. App. 48; Vaughn v. Scade, 30 Mo. 600; Delaney v. Kansas City Police Ct., 167 Mo. 667; Liberman v. State, 26 Neb. 464; State v. Ruhe, 24 Nev. 251; Greeley v. City of Passaic, 42 N. J. Law, 87; People v. McCarthy, 45 How. Pr. (N. Y.) 97. "Both in England and in this state, long prior to the earliest of our state constitutions, vagrants and disorderly persons, as defined by statute, were made subject to summary trials without jury, and frequently from time to time, in both countries, additions have been made by statute to the classes known as dis orderly persons, with provisions subjecting them to arrest and trial in the same form." People v. Justices of Ct. of Sp. Sessions, 74 N. Y. 406; Inwood v. State, 42 Ohio St. 186; Wong v. City of Astoria, 13 Or. 538; Ex parte Schmidt, 24 S. C. 363; Ex parte Marx, 86 Va. 40; State v. Kennan, 25 Wash. 621; Ogden v. City of Madison, 111 Wis. 413. See, also, cases cited under preceding note. 350 Boring v. Williams, 17 Ala. 510; Lavey v. Doig, 25 Fla. 611; Vaughn v. Scade, 30 Mo. 600; Frazee v. Beattie, 26 S. C. 348. 357 Moran v. City of Atlanta, 102 Ga. 840; State v. Von Sachs, 45 La. Ann. 1416; Flynn v. Canton Co., 40 Md. 312; Taylor v. Lake Shore & M. S. R. Co., 45 Mich. 74; Sanders v. Southern Elec. R. Co., 147 Mo. 411, 48 S. W. 855; Young, McShea Amusement Co. v. Atlantic City, 60 N. J. Law, 125; Philadelphia & B. R. Co. v. Borough of Brigantine, 60 N. J. Law, 127. 358 Goldsmith v. City of Huntsville, 120 Ala. 182, 24 So. 509. No execution may issue for an unpaid fine. Knowles v. Village of Wayne nature, not criminal, and are generally brought in special courts of limited jurisdiction and possessing, as a rule, no general power to determine or pass upon civil rights.350 A penalty incurred un City, 31 Ill. App. 471; Gipps Brewing Co. v. City of Virginia, 32 Ill. App. 518. Attorneys' fees cannot be incorporated in a judgment for costs rendered in an action to recover the penalty for the violation of a city ordinance. Anderson v. Schubert, 55 Ill. App. 227; City of Newton v. Bergbower, 63 Ill. App. 201; Miller v. O'Reilly, 84 Ind. 168; City of Davenport v. Bird, 34 Iowa, 524; People v. Vinton, 82 Mich. 39; In re Bushey, 105 Mich. 64; Moran v. Pullman Palace Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755. No civil liability can be created by ordinance against a person violating it. In re Miller, 44 Mo. App. 125; City of De Soto v. Brown, 44 Mo. App. 148; City of St. Louis v. Knox, 74 Mo. 79; City of Monett v. Beaty, 79 Mo. App. 315; People v. Garabed, 20 Misc. 127, 45 N. Y. Supp. 827. As a proceeding to recover a penalty fixed for the violation of an ordinance is civil in its character, not criminal, it is not necessary to allege in the complaint or action that the defendant wrongfully and unlawfully did the act charged. Town of Columbia v. Harrison, 2 Mill Const. (S. C.) 215; City of Sioux Falls v. Kirby, 6 S. D. 62, 25 L. R. A. 621; City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947. "A preliminary question, however, is presented by respondent's motion to dismiss this appeal on the ground that the action is criminal and can be brought to this court only by writ of error. Upon this question, whether generally an action for the recovery of a fine for the violation of a municipal ordinance is a civil or criminal action, the expressions of the courts have not always been harmonious. Municipal authorities can and ought to protect the lives, health and property of its subjects against jeopardy, by regulating and even prohibiting altogether many acts which are allowable and innocent under the general laws of the state. Local or temporary causes will often justify such action but it may be going too far to say that a city council may, upon its own judgment, make an act criminal in its character which by the law of the state is not criminal. The possession of such power is not necessary for the enforcement of its ordinances." 359 Ex parte Reed, 4 Cranch, C. C. 582, Fed. Cas. No. 11,634; City of Hartford v. Talcott, 48 Conn. 525; Walton v. City of Canon City, 13 Colo. App. 77, 56 Pac. 671; Brink's Chicago City Exp. Co. v. Kinnare, 168 Ill. 643; Chicago, R. I. & P. R. Co. v. Kennedy, 2 Kan. App. 693; Brophy v. City of Perth Amboy, 44 N. J. Law, 217; State v. White, 76 N. C. 15; State v. Threadgill, 76 N. C. 17; Vandyke v. City of Cincinnati, 1 Disn. (Ohio) 532. See, also, authorities cited in preceding note. Com. v. Thompson, 110 Pa. 297; City of Lead v. Klatt, 11 S. D. 409, 75 N. W. 896; Id., 13 S. D. 140; Sparta Corp. v. Lewis, 91 Tenn. 370; Jenkins v. City of Cheyenne, 1 Wyo. 287; Village of Platteville v. Bell, 43 Wis. 488. But see Brown v. City of Mobile, 23 Ala. 722, which holds that such proceedings are quasi |