The charter of the appellant city upon it the power to license dram-shops, and to impose a penalty for keeping them without a license. Mansf. Dig. sec. 751. And it may lawfully provide that each day on which a saloon is thus kept shall constitute a separate offense. Siloam Springs v. Thompson, 41 Ark. 456. It follows that, under a valid ordinance containing such provision, a conviction for keeping a dram-shop on a given day is no bar to a prosecution for keeping it on a subsequent day, where the proof relied upon to sustain the second charge is not the same adduced in support of the first. Wharton, Cr. Pl. & Pr. secs. 472, 475. It can make no difference that both days are embraced in the period for which the defendant should have procured a license, since the penalty inflicted for the first offense applies to that only, and can afford no protection against a punishment for the second. Horr & Bemis on Municipal Ordinances, sec. 264.
The defendant, however, contends that so much of the ordinance in question here as provides a penalty for each offense after the first is void because it imposes a fine in excess of that- permitted by a provision of the incorporation act, and for the additional reason that it undertakes to make each sale constitute a separate offense. The statutory provision referred to is as follows :
“ If a thing prohibited or rendered unlawful is, in its nature, continuous in respect to time, the fine or penalty for allowing the continuance thereof, in violation of the * * * ordinance, shall not exceed fifteen dollars for each day the same may be unlawfully continued.” Mansf. Dig. sec. 767.
The keeping of a dram-shop is a continuous thing, within the meaning of this provision. And the statute does not intend that each day on which it is unlawfully kept shall constitute more than one offense. As each day may include an indefinite number of sales, the aggregate penalty for which might exceed the maximum punishment the city has the power to inflict for that space of time, the clause of the ordinance making each sale a separate offense is inconsistent with the statute.
But as that clause is separable from the penalty of the ordinance, and is not necessary to the efficiency of the other provisions, it may be treated as stricken out. State v. Marsh, 37 Ark. 356; Horr & Bemis on Mun. Ord. sec. 139. With that clause eliminated, the ordinance may be construed as making each day on which it is violated a repetition of the offense it punishes.
The objection that by its terms it will still inflict an . excessive penalty for each offense after the first is fatal to its validity; for, by another section of the poration act, it is provided that if any ordinance impose a greater fine than the act permits, it shall be lawful, in any prosecution under it, to render judgment for such amount only as the act authorises. . On this view of the ordinance, we hold that the court’s declaration of law was not correct, and that it was error to sustain the defendant’s plea.
Reversed and remanded for a new trial.