Ross, J.: The defendant makes return to the writ that he holds the above-named Nicholas Economus under and by virtue of a warrant issued by the clerk of the City Court of Utica for the arrest of the said Nicholas Economus, in that the said Nicholas Economus is guilty of the crime of wrongfully and feloniously violating Ordinance 383 of the year 1919 of the city of Utica, a misdemeanor, in that, on or about the 4th day of January, 1920, the relator conducted a public place of business for profit, a pool and billiard parlor, at 167 Genesee street, Utica, N. Y., without filing a surety bond and obtaining a license, and did permit said premises to remain open between the hours of 12 o'clock midnight, January 3, 1920, and 6 o'clock A. M., January 5, 1920, viz., did permit said premises to remain open for business on Sunday, January 4, 1920. The ordinance in question provides: Section 1. “No public pool or billiard or pocket billiard room, public bowling alley or public place of any description in which pool or billiards or pocket billiards are played or which includes a bowling alley on the premises or which includes any apparatus or paraphernalia for the playing of pool or billiards or for bowling, and which is conducted as a public place of business for profit, shall be permitted in the City of Utica unless a license therefor is granted annually to the proprietor thereof by the Mayor of the City of Utica." Section 2 provides for the payment of a license fee of $25 and the deposit of a bond of $1,000 in the office of the treasurer of the city of Utica. Section 3 provides for the issue of a suitable license for framing purposes, which is unimportant. Section 4 provides: Subdivision (A) for the closing of pool rooms on Sunday; subdivision (B) prohibits the allowing of a child actually or apparently under the age of sixteen years, unaccompanied by its parents, in the pool room or any place adjacent thereto; subdivision (C) is as follows: "Who vio lates any of the provisions of section one of this ordinance;" and the section concludes with the statement: "Is guilty of a misdemeanor, and upon conviction thereof, if an individual, shall be punishable as follows: First offense by a fine of one hundred and fifty dollars; " and further provisions in regard to subsequent convictions. Section 5 provides when the mayor may refuse to issue a license. Section 6 has no relation to the matters herein involved. Section 7 provides that the ordinance shall take effect January 1, 1920. The relator challenges the validity of the aforesaid ordinance upon various grounds, with others that the common council of the city of Utica exceeded its powers in that it enacted an ordinance relative to Sabbath breaking, which provision is repugnant to the laws of the State of New York; that the common council unlawfully delegated its powers to the mayor to grant or withhold a license, a power which relator claims is judicial in its character and can only be exercised, if at all, by the common council itself; that the penalties provided for violation of the ordinance are excessive, and that the provisions of the ordinance as an entirety are unreasonable. The attorneys upon the argument of this motion, and in their briefs, have emphasized the question as to the authority of the common council of the city of Utica to pass and enforce an ordinance relating to Sabbath breaking, and the relator in this regard relies upon the case of People ex rel. Kieley v. Lent (166 App. Div. 550; affd., 215 N. Y. 626), which was the case of an exhibition of moving pictures on Sunday. If the view which I take of the matters presented is correct, the question of Sunday observance is not presented. Section 4 of the aforesaid ordinance provides: "(A) Who permits premises so licensed to remain open between the hours of twelve o'clock midnight Saturday and six o'clock a. M. Monday of each week; " (B) a provision in reference to allow ing children under the age of sixteen years on the premises: (C) "Who violates any of the provisions of section one of this ordinance; is guilty of a misdemeanor and upon conviction," etc. Section 1 referred to provides that no person shall be permitted to carry on the business of conducting a pool and billiard room unless a license is granted annually to the proprietor thereof by the mayor of the city of Utica. The relator in this case was charged in the warrant under which he is held that he wrongfully and feloniously did "conduct a public place of business for profit, a pool and billiard parlor, at 167 Genesee street, Utica, N. Y., without filing a surety bond and obtaining a license," and then follows a provision in regard to Sunday observance, so that the question here relates solely to the authority of the common council to enact and enforce the aforesaid ordinance, and not the question of the relator's violating of the provisions relating to the duties of a license holder. If the common council of the city of Utica had the power to pass the ordinance in question, the relator is properly held under the warrant invoked by the defendant; if it did not possess such authority, no further question is presented. any Severability of provisions of the ordinance.-Assuming, for the purposes of this case only, that the provision of the aforesaid ordinance in regard to the Sunday observance is invalid, it is clearly severable and does not affect the validity of the balance of the ordinance. An, analogous case was presented in Matter of Cullinan (40 Misc. Rep. 583), Kenefick, J., Erie County Special Term, 1903. This was an application, based upon a verified petition, containing positive averments of violations of the Liquor Tax Law, in which the certificate holder appeared by attorney and interposed the objection that the provisions of subdivision 2, section 28, of the Liquor Tax Law requiring him to file a verified answer tendering an issue, and in default of such answer directed the revocation of his certificate, is unconstitutional and therefore void for the reason that he cannot be compelled to answer under oath in a proceeding to forfeit his property. This objection was sustained upon the decision previously rendered in the Second Department, but held that the unconstitutionality of the provision referred to did not nullify the whole scheme of revocation, but left the same unimpaired as established in its original form. In Duryee v. Mayor (96 N. Y. 477, 491), Chief Judge Ruger uses the following language: "If effect can consistently with the general legislative intent be given to such parts of a statute as are not in conflict, with paramount authority and are within the authority of the body enacting them, it is the duty of a court, while rejecting its unconstitutional and unauthorized parts, to enforce the remaining provisions of a law which are within the legislative power of its authors. When part only of a statute or a section is unconstitutional, that part only is void, unless the other provisions are so dependent and connected with that which is void, that it cannot be presumed that the legislature would have enacted the one without the other." (People ex rel. McPike v. Van de Carr, 91 App. Div. 20, 26; affd., 178 N. Y. 425; Chapman v. Selover, 172 App. Div. 858, 862; revd., 225 N. Y. 417, upon other grounds. In Yellow Taxicab Co. v. Gaynor (82 Misc. Rep. 94; affd., 159 App. Div. 888, 893; affd., in the case of Waldorf-Astoria Hotel Co. v. City of New York, 212 N. Y. 97), on page 101, Seabury, J., on whose opinion the case was affirmed by the Appellate Division, First Department, uses this language: "In determining the questions presented the court must keep in mind the well-settled principle of law that the fact that there may be void provisions of a statute or ordinance furnishes no reason for declaring the whole statute or ordinance void. Some of the provisions of the ordinance attacked upon these motions may be open to question. The validity of these provisions is in no way involved in these actions, and the court should not go out of its way to anticipate controversies which may not arise." (Sautter v. Utica City Nat. Bank, 45 Misc. Rep. 15, decision by the late Judge Rogers. Judgment * * * affirmed on opinion of Rogers, J., 119 App. Div. 898; affd., 193 N. Y. 661.) Delegation of authority.-The relator claims that if the common council had the power to require a license, that it could not delegate to the mayor the discretionary power given that official by the provisions of the ordinance in question. This claim is upon first impression apparently sustained in the leading case of Thompson v. Schermerhorn (6 N. Y. 92), which has been followed by a large number of cases, and the relator cites the case of City of Hudson v. Flemming (139 App. Div. 327). I only refer in this connection to these two cases, as such reference will indicate the line of demarkation between the principle invoked as to a delegation of discretionary powers and the facts presented in the instant case. The Schermerhorn case is distinguished in City of Brooklyn v. Breslin (57 N. Y. 594), in which it is stated: " There it appeared that the common council of that city were empowered by law to make by-laws and ordinances directing streets to be pitched, leveled, etc., in such manner as the city superintendent, under the direction of the committee of roads of the common council should direct and require." (The foregoing italics are as printed in the reported case.) It passed a law or ordinance directing a part of State street in that city to be pitched, leveled and paved to the center thereof in such manner as the city superintendent, under the direction of the committee of roads of the common council, should direct and require, and it was held that the ordinance was void because the common council did not themselves prescribe in what manner the improvement should be made, and that they could not delegate that power to a city official or committee. This it had no power to do. In the case of City of Hudson v. Flemming, the relator was convicted of violations of an ordinance of the local board of health of the city of Hudson, which prohibited the sale of milk without a license from said board. The ordinance in question |