The first section of ordinance No. 40 provides “that no cow or other cattle shall be permitted to run at large within the city limits, between the hours of 9 o’clock, p. m. and 5 o’clock, a. m., * * * and that it shall be the duty of the city marshal to take up upon complaint of any citizen any cow or cattle found running at large.”
Sec. No. 6 provides that, “If any person shall break open in any manner, directly or indirectly, any pen or inclosure with the intent of releasing any animal confined therein pursuant to the provisions of this articlé, every such person on conviction shall for such offense be fined in a sum of not less than ten dollars, and not more than one hundred dollars.” The information, after reciting the ordinance, alleges “ that the city marshal took up and placed in a pound or inclosure as in said ordinance provided, a certain cow then and there being the property of the defendant, O. F. Jaquith, and that on the 23d day of July, 1875, the said cow being confined in said pound and inclosure, the said defendant did break open said pound and inclosuro with intent of releasing the said animal therefrom, contrary to the provisions of said ordinance.”
I. The appellee contends that the violation of an ordinance of a city providing a penalty of a fine is not a crime, and that, therefore, the plaintiff was not liable to be arrested, but was only liable to be subjected to a civil proceeding. Such is not our view.
In Nathaniel Goddard, Petitioner, etc., 16 Pick., 504, the defendant was prosecuted for neglecting and refusing to remove snow from the sidewalk in a street in the city of Boston adjacent to his land, in violation of a by-law of the city imposing a penalty of a fine. Shaw, Oh. J., said: “There is no difference in principle between a prosecution for breach of a by-law made to promote the health, safety and convenience oí a large city, and a like prosecution for nuisance or other misdemeanor made such by common law or statute. In both cases the law is made by competent authority, the object of i1 is the health, comfort and safety of the community, and in both cases a violation of it is a public wrong.”
It appearing, therefore, that where a city ordinance is made to promote the public peace, safety and convenience, and pro vides for a penalty of a fine, the violation of the ordinance is a public offense, and the guilty party is liable to a criminal prosecution, we proceed to inquire before what tribunal the guilty party can be tried.
By said section it will be seen that the jurisdiction of the mayor is not expressly made exclusive. By Sec. 4499 of the Eevision, the jurisdiction of the mayor in prosecutions of this kind was expressly made exclusive. The provision being repealed and not re-enacted, we must presume that the legislature did not intend to make the jurisdiction of the mayor exclusive. It follows that the justice of the peace upon whose warrant the plaintiff was arrested had jurisdiction to try the case; and, if so, he had power to issue the warrant and, as an incident to that power, to detain the defendant in custody until he should be tried. That is the restraint of which the plaintiff complains as illegal, and from which he was discharged. It will be observed that the question does not arise in this case as to'whether a justice of the peace can impose imprisonment instead of a fine as a penalty for the offense, in the absence of an ordinance providing such penalty, nor does the question arise as to whether, in case a fine is imposed, a justice of the peace has power to commit in default of payment thereof. The imprisonment in this case was neither the penalty for the offense, nor the means of enforcing payment of a fine. It was simply incident to the arrest, and the arrest was the proceeding whereby the justice of the peace acquired jurisdiction of the pierson.
Beversed.