¶1On Application roe Reheaeing.
¶2. The City Attorney asks for a rehearing in this case.
¶3In the brief for the rehearing the City Attorney says: “ But should your Honors determine that the question involved herein is to be determined upon a possible instead of an actual case, we respectfully submit that your Honors’ decree should go no further than to declare null the clause providing for previous permission from the City Council.”
¶4We can not conceive of a more actual case for determination than one wherein the defendant has been tried, convicted and sentenced for the violation of the ordinance under consideration.
¶5The ordinance made it an offence for keeping a dairy within prohibited limits without permission from the City Council. We did not consider the right or power of the City to prohibit dairies within the City limits. This power is undoubted, when exercised in the interest of the public health. • We distinctly asserted in the opinion that this ordinance was not enacted in the interest of public health. The permission to keep dairies within the limits, we said, negatived this view.
¶6It is true that a portion of an ordinance may be objectionable and *500the other portions may be good, and in such cases that which is good remains.
¶7What was the offence denounced in the ordinance? Keeping a dairy within certain,prohibited limits without permission. Dairies were prohibited within certain limits without the permission of the City Council.
¶8The City Council could, under the ordinance, permit as many dairies as they desired within the prohibited limits. As stated, the offence is keeping a dairy without permission. Strike this out and there would be no penalty. Therefore the permissive part of the ordinance was an essential and connected part of it, without which it would be only a prohibition. To declare the permissive part void, and to state that the penalty should remain, would be, on our part, legislation. It would be amending and reénaeting the ordinance. This is the business of the City Council.