held liable for an injury to adjacent land caused by letting loose large quantities of water containing oil and sewerage matter, which was deposited on the land to the injury of quantities of vegetables growing thereon.

But in Kentucky, a public hospital which maintains a nuisance and thereby injures the property of another, or otherwise takes and injures the property of another, is liable in damages for the tort, on the ground that such action is a taking of property without making just compensation, as required by the state Constitution. Hauns v. Central Kentucky Lunatic Asylum (1898) 103 Ky. 562, 45 S. W. 890; Bank of Hopkinsville v. Western Kentucky Asylum (1900) 108 Ky. 357, 56 S. W. 525; Herr v. Central Kentucky Asylum (1901) 110 Ky. 282, 61 S. W. 283; Leavell v. Western Kentucky Asylum (1906) 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827; UNIVERSITY OF LOUISVILLE V. METCALFE (reported herewith) ante, 375.

v. Central Kentucky Lunatic Asylum (Ky.) supra, where a judgment against a state insane hospital was approved, and a levy and sale of the hospital property to satisfy the judgment was allowed, so long as such levy and sale would not render the hospital totally unable to care properly for its inmates. The judgment was for injury to adjoining property by depriving it of a portion of certain water, and discharging matter into the remainder, which so polluted it as to render it unfit for use and unhealthy to the occupants of the land. through which it ran; in Bank of Hopkinsville v. Western Kentucky Asylum (1900) 108 Ky. 357, 56 S. W. 525, supra, where a state hospital wrongfully converted the water of a stream by means of a dam and pumping station, to the injury of a lower riparian owner, who had the right to dam and use the water for power purposes; in Herr v. Central Kentucky Asylum (1901) 110 Ky. 282, 61 S. W. 283, supra, where the hospital authorities built dams across a creek running through its property, and deprived a lower property owner of his necessary water supply, and also maintained sewers which discharged into the creek below the dams and polluted the remaining water; and in Leavell v. Western Kentucky Asylum (Ky.) supra, and the reported case (UNIVERSITY OF LOUISVILLE V. METCALFE, ante, 375), this rule is stated.

This exception to the general rule of nonresponsibility for torts is discussed, and the reason for it given, in Leavell v. Western Kentucky Asylum (1906) 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827, supra, where the court says: "There are, however, cases which hold that the municipalities and even eleemosynary institutions are liable for creating and maintaining public nuisances which endanger the lives of contiguous residents, or injure their property. But, in respect to property rights, the liability arises from the fact that any injury to real estate without the owner's consent, and which destroys or lessens its value, amounts to a deprivation of his use and enjoyment thereof, and is therefore a taking of such property, in the meaning of §§ 13 and 242, state Constitution, which prohibit corporations and individuals from taking private property for public or other use, without first making just compensation for the 'property taken, injured, or destroyed by

them.'"

This exception to the general rule was held to apply, and the hospital was held liable in damages, in Hauns

And in Eastern Lunatic Asylum v. Garrett (1876) 27 Gratt. (Va.) 163, it is held that a hospital for the insane, supported by the state, and acting as its agent to care for insane persons, is liable in an action of trover for supplies consumed by the institution. But this case is stated and distinguished in the later Virginia case of Maia v. Eastern Hospital (1899) 97 Va. 507, 47 L.R.A. 577, 34 S. E. 617, supra, as follows: "During the Civil War the military forces of the United States took possession of Williamsburg, where the defendant asylum was and is located, and held it until the end of the war. Upon their approach to the city, the authorities in charge of the asylum left it, and did not

return. In January, 1865, the Federal officer who was in command there sent out a party some miles into the country and took by force from the farm of the plaintiff, who had left his home, corn and bacon, which was sent to the asylum and used for the support of the inmates. After the war the plaintiff brought an action of trover against the asylum to recover the value of the articles taken and used. It was held in that case: First, that by the laws of war property could not be taken without compensation for the purpose of feeding the inmates of the asylum; second, that the property having been taken without lawful authority, the plaintiff's title to it was not devested, and, it having been applied to the defendant's use, he could recover its value from the asylum in an action of trover. Although the action in that case was in tort, it could as well have been in assumpsit. . . . It was to recover the value of property which the defendant had the right to purchase for the maintenance of those intrusted to its care, and pay for out of the appropriation made for that purpose by the state; and, the plaintiff's property having been converted to the use of the corporation for the same purposes for which it had authority to purchase it, it ought to have paid for it, and the court very properly held that an action would lie to compel it to do so."

IV. Power "to sue and be sued." That the power conferred upon such public corporations as are under con

sideration, "to sue and be sued," is not a power to sue and be sued for any cause of action, whether in contract or tort, but to sue and be sued upon such matters only as are within the scope of the other corporate powers of such an institution, is held in Lyle v. National Home (1909; C. C.) 170 Fed. 842; White v. Alabama Insane Hospital (1903) 138 Ala. 479, 35 So. 454; Leavell v. Western Kentucky Asylum (1906) 122 Ky. 213, 4 L.R.A. (N.S.) 269, 91 S. W. 671, 12 Ann. Cas. 827; and in Overholser v. National Home (1903) 68 Ohio St. 236, 62 L.R.A. 936, 96 Am. St. Rep. 658, 67 N. E. 487. This is upon the ground, as expressed in the last cited case, that "the home not having been given the right to commit wrongs upon individuals, and it not having been contemplated that it would do so, the right to sue the home for tort was never contemplated or conferred." V. Effect of receiving compensation from patients.

In Browder v. Henderson (1919) 182 Ky. 771, 207 S. W. 479, the fact that a hospital, maintained by a city, received pay from some of its patients, or that it received money from other than public funds, was held not to alter or change the rule that it was not liable for the torts of its officers or employees; and the same decision was reached in McDonald v. Massachusetts General Hospital (1876) 120 Mass. 432, 21 Am. Rep. 529, and in Watson v. Atlanta (1911) 136 Ga. 370, 71 S. E. 664. J. P. M.

(— Or. —, 250 Pac. 834.)

Fines, § 1 satisfaction by serving time.

-

1. Under a statute providing that upon nonpayment of a fine defendant shall be imprisoned one day for every $2 of fine, he may apply the time served at the specified rate upon the fine and secure his release upon paying the balance due.

[See annotation on this question beginning on page 392.]

(Or., 250 Pac. 834.)

Imprisonment for debt, § 10 nonpayment of fine.

2. Imprisonment for failure to pay

a fine is not an unconstitutional imprisonment for debt.

[See 21 R. C. L. 212.]

(Burnett, J., dissents.)

APPEAL by petitioner from an order of the Circuit Court for Linn County (Kelly, J.) denying a writ of habeas corpus to secure his release from custody to which he had been committed for maintaining a common nuisance. Reversed.

The facts are stated in the opinion of the court.

Mr. Tom Garland, for appellant: Petitioner may, under § 1577, serve in jail at the rate of $2 per day, satisfying a portion of the fine, and pay the unsatisfied balance of the fine in cash, and claim his release.

State v. Towner, 26 Mont. 339, 67 Pac. 1004; Ex parte Riley, 142 Cal. 124, 75 Pac. 665; Ex parte Casey, 85 Cal. 36, 24 Pac. 599; Ex parte Chin Yan, 60 Cal. 78; Ex parte Baldwin, 60 Cal. 432; People v. Collazo, 20 P. R. R. 190.

Mr. L. G. Lewelling, for respondent:
The true intent and purpose of §

In pursuance of this sentence, Murphy served 102 days in jail. He then tendered to the justice of peace, the sheriff, and the county treasurer the sum of $301 in payment of the remaining portion of the fine and the costs, and demanded that he be released from custody, maintaining that the 102 days he had served should be applied to his fine at the rate of $2 a day, or a total of $204. Upon his release being denied, Mur

1577, requiring as a part of the judg-phy filed a petition for a writ of

ment that defendant be imprisoned until the fine specified in said judgment be satisfied, is not to pronounce imprisonment as the punishment, but as a means of coercing payment of the judgment for the fine.

State v. Sheppard, 15 Or. 601, 16 Pac. 483; Ex parte McGee, 33 Or. 165, 54 Pac. 1091; Ex parte Kelly, 28 Cal. 416; Harlow v. Clow, 110 Or. 261, 223 Pac. 541; 8 R. C. L. 270, § 282.

The duration of imprisonment, as fixed by the court in default of payment of the fine levied, was for the whole term imposed, and not for a part of it; and a prisoner, under such sentence, cannot elect to pay a portion of the fine levied and satisfy the remaining portion of it by suffering imprisonment.

Galles v. Wilcox, 68 Iowa, 664, 27 N. W. 816.

Bean, J., delivered the opinion of

the court:

On the 27th day of February, 1925, Ivan Murphy pleaded guilty in the justice's court for district No. 1, Linn county, Or., to maintaining a nuisance, and was sentenced "to

habeas corpus, and again tendered the $301 in full payment of the balance of his fine and costs. Upon the return of the said writ in the circuit court for Linn county, the court refused to order the sum received, and remanded the prisoner to the custody of the sheriff to be held pursuant to the original commitment. Murphy appeals to this court from said judgment.

Section 1577, Or. Laws, provides: "A judgment that the defendant pay a fine must also direct that he be imprisoned in the county jail until the fine be satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine; and in case the entry of judgment should omit to direct the imprisonment and the extent thereof, the judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant until the fine is satisfied at the rate above mentioned."

A fine is defined as a pecuniary

Day a fine of $500 and $5 costs, and, punishment imposed by a lawful

upon default in payment of such fine, to be imprisoned in the Linn County jail for a period of 250 days."

49 A.L.R.-25.

tribunal upon a person convicted of a crime or misdemeanor. 25 C. J. 1148. The statute provides how the sentence of a fine may be discharged

in lieu of a money payment. It states that the judgment must direct that the party be imprisoned until the fine be satisfied; that the judgment must specify the extent of the imprisonment; and that the extent of the same must not exceed one day for every $2 of the fine. It further provides that omission to specify the same shall operate to require the defendant's imprisonment until said fine is satisfied at the rate of $2 per diem. In other words, the statute permits the performing of a sentence of a fine in two ways, one alternative being the payment of the fine in money, the other by serving the time in jail at a specified rate; either method being equally effective to secure the defendant's ultimate discharge. We see no good reason why days lain out in jail, at the prescribed rate, should not be applied pro tanto to reduce the fine. We fully agree with the holding in Harlow v. Clow, 110 Or. 261, 223 Pac. 541, cited by the respondent, to the effect that the imprisonment for a failure to pay a fine is not unconstitutional as being an imprisonment for debt, payment of fine. forbidden by the Constitution, but a means of enforcing the payment of the fine. We believe, however, that the provisions of § 1577, Or. Laws, permit time served in jail at the rate specified by the judgment or statute to be applied toward the part satisfaction of the fine. We must hold, therefore, that the alternative of imprisonment may be reduced by

Imprisonment for debt-non

Fines-satisfaction by serving time.

the partial payment of the fine, and that imprisonment for a portion of the time may reduce the amount of fine to be paid.

The California statute is similar to that of Oregon. Deering's Penal Code (Cal.) 1923, § 1205. The following construction is given it: "A defendant is entitled to his discharge upon payment of the fine.

And the courts, by a judicial construction of the statute, have determined that, where he has served

a portion of the term of imprisonment, he is entitled to his discharge upon payment of the balance of the fine, not satisfied by imprisonment at the rate specified." 8 Cal. Jur. § 488, p. 473, citing Ex parte Henshaw, 73 Cal. 486, 496, 15 Pac. 110; Ex parte Kelly, 28 Cal. 414; Ex parte Riley, 142 Cal. 124, 75 Pac. 665.

In Ex parte Kelly, 28 Cal. 414, supra, Mr. Chief Justice Sanderson said: "There is no force in the point that the defendant is bound to satisfy the whole fine by imprisonment and cannot be allowed to pay the unsatisfied portion of his fine and be thereupon discharged from custody. For each day which he has or may hereafter pass in prison he is entitled to a credit of $2 upon his fine and he may at any time pay the sum then remaining unsatisfied and claim his discharge from custody."

Where, under the statute, the imprisonment operates as a satisfaction of the fine at a certain rate per day, the prisoner may at any time pay the sum remaining unsatisfied and claim his discharge. 25 C. J. 1160 § 26. Section 1577, Or. Laws, plainly authorizes the satisfaction of a judgment to pay a fine by imprisonment, at the rate of $2 for every day of confinement in jail.

There is no incongruity between this section and § 1579, providing for the docketing as a judgment in a civil action, and with like effect, as provided in § 205, of a judgment that the defendant pay money either as a fine or as costs and disbursements of the action or both.

Section 1579, together with § 205, simply provides an additional method of enforcement of the payment of a fine and costs. Section 205 does not, however, authorize the issuance of an execution, or the enforcement of such a judgment after the same has been satisfied either by payment or imprisonment for the required time. The law does not contemplate that a defendant shall expiate the offense of a misdemeanor more than once.

(Or. —, 250 Pac. 834.)

Burnett, J., dissenting:

Convicted of a misdemeanor, the petitioner, on February 27, 1925, was sentenced to pay a fine of $500 and $5 costs, and, in default of payment of such fine, to be imprisoned in the county jail not exceeding 250 days. Failing to pay the fine at once, he was incarcerated in the jail. On June 22, 1925, he claimed to have been there under such imprisonment 102 days, tendered to the sheriff and the county treasurer $301 in full satisfaction of his fine and costs, and demanded his release, which being denied, he petitioned in habeas corpus. His writ was dismissed and he appealed.

Section 1577, Oregon Laws, reads thus: "A judgment that the defendant pay a fine must also direct