are hereby authorized and directed to provide such rules and regulations in regard to the employment of said convicts, and for the allowance of credits in time and compensation for good behavior to any such convicts so employed as are not inconsistent with the provisions of this act; provided, however, that no credit in excess of ten days in time shall be allowed for each calendar month, and in the default of the payment of a fine such convict shall be made to labor at the rate of $2 per day until such fine is fully paid."

The contention of the petitioner is that his imprisonment in the jail, although without labor, operates to discharge the judgment pro tanto at the rate of $2 of the fine for each day of his imprisonment and that he is entitled to his release upon paying the remainder in money. Under § 1577, the sentencing court has the discretion of specifying any extent of the imprisonment not exceeding the maximum prescribed in that section. If there is no discretion in the matter, why the requirement that the court shall specify the extent? The proper construction of that statute is that, in case the court omits to specify a less rate of imprisonment, the law itself will supply the omission and fix the maximum number of days equal to onehalf the number of dollars assessed as a fine. Nothing is said in the section about allowing the defendant the option of changing the penalty from fine to imprisonment.

In State v. Sheppard, 15 Or. 598, 16 Pac. 483, the direct question before the court was whether a de

fendant convicted of a misdemeanor and fined could be imprisoned to compel the payment of the costs. Quoting from the statute corresponding to the present § 1577, Oregon Laws, supra, Mr. Chief Justice Lord said:

"But it is provided that '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,' etc. Section 1408, Hill's Code. Under this section the period specified for impris onment, unless the fine be paid, cannot exceed one day for every $2 of the fine, and applies only to the fine imposed, and does not include costs incurred in the prosecution of the action. It is a direction to and limitation upon the power of the court when a judgment for a fine is given. It directs that when a fine has been adjudged, the court must imprison until the fine be satisfied, limiting the term of the imprisonment to a time specified, which bears a certain relation to the amount of the fine.

"As subdivision 6 of § 2052 only authorized the imposition of a fine as a punishment, and as § 1408, for the purpose of enforcing the payment of the fine and not as a punishment directs that the defendant be imprisoned until the fine be satisfied, not to exceed one day for every $2 of the fine, it follows that when the defendant was adjudged to pay specified for the purpose of coercing a fine of $30, the imprisonment days. its payment could not exceed 15 To construe § 1408 otherwise, that is to say, as authorizing punishment by imprisonment, would look like convicting the defendant under one law (§ 2052, subd. 6), and punishing him under another (§ 1408), unless the two must be read together, and are in practice in pari materia; the true intent and purpose of § 1408 being not to pronounce imprisonment as coercing the payment of the judg the punishment, but as a means of ment for a fine for an assault and battery under subdivision 6, § 2052."

a

In Ex parte McGee, 33 Or. 165, 54 Pac. 1091, the question arose in another form. The petitioner in habeas corpus had been convicted of a violation of an ordinance of fined in the sum of $200, in default the city of Portland and had been of the payment of which he was committed to the city prison for 100 days. The charter in force at the

(Or., 250 Pac. 834.)

time equipped the city court with procedure in like manner as justices of the peace under the state laws. The charter also limited the power of imprisonment as a penalty to 90 days. Acting in accordance with the law relating to justices of the peace, the judge of the city court had fined the petitioner $200 and committed him to the city jail, as stated, for 100 days in default of payment. On his writ, he claimed that this was in excess of the charter power, but Mr. Justice Wolverton disposed of that contention by pointing out, as in the Sheppard Case, that the imprisonment in default of payment of a fine was not in any sense punishment, but only a means of enforcing the payment of the money fine.

Again, in Harlow v. Clow, 110 Or. 257, 223 Pac. 541, a like conclusion was reached by Mr. Justice Brown, who said: "The imprisonment arising from the defendant's failure to pay the fine is deemed in law not a punishment for the crime, but as a means of enforcing the payment thereof."

In support of his conclusion he quotes at length from Ex parte McGee, supra.

The subject is treated at length in Ex parte Bryant, 24 Fla. 278, 4 So. 854, 12 Am. St. Rep. 200, and extensive note in the latter report. Likewise, in State v. Sorenson, 65 Mont. 65, 210 Pac. 752, the same question arose, and the court said: "The appellant also alleges that the part of the judgment of the lower court in which the court ordered that the defendant be imprisoned in the county jail in Dawson county, Mont., until said fine is paid, the imprisonment not to exceed one day for every two dollars of said fine, cannot be sustained. The appellant contends that the imprisonment of the defendant to enforce the payment of the fine was an excess of authority by the district court. It has been held that the order for imprisonment on such a verdict as in this case is only the means for the collection of the fine,

"This court in Re Londos, 54 Mont. 418, 170 Pac. 1045, and State ex rel. Poindexter v. District Ct. 51 Mont. 186, 149 Pac. 958, has disposed of this question contrary to appellant's contention. We add to these cases that of Ex parte Bryant, a case frequently cited, 24 Fla. 278, 12 Am. St. Rep. 200, 4 So. 854, in which it is said: "The penalty, or the punishment adjudged, was the fine. The custody adjudged was the mode of executing the sentence; that is, of enforcing the payment of the fine.'

"And it was likewise said in Re Newton, 39 Neb. 757, 58 N. W. 436: "The penalty imposed upon the petitioner is pecuniary merely. The imprisonment adjudged in this case forms no part of the punishment per se, but is one of the means of enforcing compliance with the judgment of the court.'"

In Iowa the Code on this subject is substantially like our own. "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every three and onethird dollars of the fine." 2 McClain's Anno. Stat. (Iowa) § 4509.

Under this statute in Galles v. Wilcox, 68 Iowa, 664, 27 N. W. 816. the petitioner in habeas corpus had been fined $100 and committed to jail until the fine be paid "not to exceed 30 days." After he had been imprisoned he paid $25 upon the fine, and, having served 20 days, he claimed discharge on the ground that his fine had been reduced by payment. The court, after quoting the statute already mentioned, said: "The duration of the imprisonment was determined, under this section, by the amount of the fine. That duration was 30 days. It was fixed and certain, and did not depend upon future partial payments of the fine. The judgment was that he should be imprisoned for 30 days,

unless the fine should be sooner paid. The term of imprisonment was for the whole fine. The statute does not contemplate that the convict shall himself control and direct the manner of the enforcement of the judgment against him by choosing to serve in jail for a part of his fine, and to pay the balance of it iu money."

The court affirmed the judgment of the district court in remanding the plaintiff to the custody of the jailer.

The state of Iowa also has a statute somewhat like our own providing that a person convicted of a criminal offense and sentenced to pay a fine and committed until the sentence be performed shall labor on public roads, or other like employment, at a certain rate. In

State v. Jordan, 39 Iowa, 387, the court construed these several sections to the effect that, if the convict actually labored, he would be credited on his fine at the rate of $1.50 per day, but that mere imprisonment would not operate to reduce his fine. This case was later explained in State v. Anwerda, 40 Iowa, 151, by Mr. Justice Cole, saying: "It was there held [State v. Jordan, supra] that a defendant, convicted for nuisance and sentenced to pay a fine, could only be ordered to be imprisoned so long as that the number of days multiplied by 3 should equal the amount of the fine, and that a sentence to confinement at hard labor would entitle the defendant to a credit of $1.50 per day for each day's labor, upon the fine; that the $3.33 per day limited the duration of imprisonment, but did not entitle the defendant to any credit upon the fine, but he is entitled to a credit on the fine of $1.50 per day for every day he may labor, where sentenced thereto."

In the case of The Tokai Maru, 4 Alaska, 311, the officers and crew of a Japanese vessel were arrested and on conviction of violation of the fishing laws, were fined $500 each. They "boarded it out,"

refusing to pay the fines, but the money judgment was nevertheless enforced by sale of their vessel. The statutes under which the decision was rendered are substantially like our own, after quoting which, the court said: "It is clear from the foregoing that the prisoner can only pay a fine, other than in money, by labor performed by him upon public work, under the direction of the Attorney General and the United States marshal. The law providing for imprisonment where a fine is not paid is a means used to enforce payment in money, in adoption to the rights of the government under a general execution to satisfy the fine.'

The conclusion is inescapable that the imprisonment prescribed in case there is a default in payment of the fine is not in any sense of the word part of the punishment. The judg ment of the court required the defendant to pay money. The law does not give him the option of translating that judgment into one sentencing him to imprisonment. Under these various statutes, there are three ways of coercing payment of a judgment that the defendant be fined. One is by imprisonment, which may be likened to an execution against person. If the defendant fails to pay, the state may resort to that means of coercion. Of course, its power is limited to a certain length of imprisonment, determined by the amount of the fine. The statute does not say that it shall be payment of the fine. One other way is to compel the defendant to work on the county roads, or other public works, and, in that method, it is said in the statute: "In the default of the payment of a fine such convict shall be made to labor at the rate of $2 per day until such fine is fully paid.'

The third way is under the terms of § 1601, Oregon Laws, by execu tion against the defendant's property as in civil cases. All that the defendant can logically maintain under these statutes is that after he has been imprisoned for 250 days,

(Or., 250 Pac. 834.)

in the instant case, the state can no longer pursue him under that particular means of coercion. It must then suspend its efforts to collect the judgment in that manner, but the judgment itself remains unimpaired and undiminished. His recalcitrancy avails him nothing. To hold otherwise is to undo what we have several times said: That the imprisonment is not a part of the punishment. It is, indeed, not the performance of the judgment. It is based upon his refusal to perform the judgment. The judgment, as well as the statutes, contemplates the payment of the full sum of money. The statute is mandatory that the defendant must be sent to jail unless he pays the fine, but that certainly cannot stay the hand of the state in its effort otherwise to collect the fine. The three methods must be read together. They are concurrent. Neither one nullifies the other. Nothing short of actual payment of the fine as the court required by its judgment will discharge the defendant from liability to pay. A wealthy rogue might laugh defiance at the law by sulking in jail although sufficient money of his was in the registry of the court as bail for appearance for sentence. If by staying in jail in idleness he reduces the fine, which is the punishment, he is being thereby punished. But we have several times said that such imprisonment is not punishment nor any part thereof. Logically we must retract that statement of the law if we sustain the petitioner's contention that he has diminished the fine by loafing in jail.

In California there are three sections of the Code reading thus, as quoted in People v. Brown, 113 Cal. 35, 45 Pac. 181:

"Sec. 1206. A judgment that the defendant pay a fine constitutes a lien in like manner as a judgment for money rendered in a civil action."

"Sec. 1214. If the judgment is for a fine alone execution may be issued thereon as on a judgment in a civil action."

In substance, those statutes are like our own. The court, speaking by Mr. Justice Garoutte, went on to say: "It will be seen, by the authorities previously quoted, that § 1205 only applies where there is no direct and express judgment or imprisonment; that is, if there is a judgment of imprisonment coupled with a judgment of fine, then the fine is not enforceable by imprisonment. A fair construction of § 1206 is that if the judgment be for a fine, without the alternative of imprisonment, it constitutes a lien upon defendant's realty; and we think this construction equally sound whether the judgment be one of imprisonment and fine, or one simply of fine not coupled with a judgment of imprisonment. We likewise conclude the true meaning of § 1214 to be that, if there is a fine alone, that is, a fine without the alternative of imprisonment, then an execution may issue as in civil actions; and, as in § 1206, we think this is equally true whether the judgment be one of fine coupled with a judgment of imprisonment, or whether it be simply a judgment of fine without a judgment of imprisonment. this construction the words, 'if the judgment is for a fine alone,' refer to a case where there is no alter

By

native imprisonment to enforce the

fine, and not to a case where there is a judgment of imprisonment coupled with the fine. By adopting this construction the sections all 1205. A judgment that the for every contingency contemplated become a harmonious whole, and defendant pay a fine may also di- by the legislative mind provision is

rect that he be imprisoned until the fine be satisfied, specifying the extent of imprisonment, which must not exceed one day for every dollar of the fine.

made."

The question resolves itself into this: Whether the statute gives the defendant the option of translating the judgment that he pay a

fine into one that he suffer imprisonment, or whether the statutes shall be taken altogether and allow the state to employ all the means provided for the collection of the entire money judgment. The former alternative gives to the defendant the power to nullify at his pleasure §§ 1601 and 3543, providing, in one instance, for execution against his property, and, in the other, for compelling him to labor. The confusion arises from the extremely technical construction placed on the last clause of § 1577, reading thus: "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."

Taking it literally, in connection with the other statutes, the matter is clarified by transposing the last clause so as to read thus: "The judgment to pay the fine shall operate to authorize and require the imprisonment of the defendant at the rate above mentioned until the fine is satisfied."

The clear intent of the statute is to provide the rate or extent of the imprisonment in the effort of the state to enforce payment. It has no reference whatever to any rate of payment. The payment is strictly specified by the judgment of the court and there has been no attempt whatever in the statute to confer upon the defendant the option of payment or not as he chooses. The various sections applicable to such a case contemplate that performance of the judgment shall be embodied only in payment of money as the judgment itself requires, the only substitute being labor which earns the money. The means of compelling that ultimate result are not to be confounded with the actual performance of the judgment. Because he has not paid in full the amount of the judgment, and has not remained in jail the full time specified, the petitioner is not entitled to be discharged.

The judgment of the circuit court should be affirmed. For these reasons, I dissent to the opinion of Justice Bean.

ANNOTATION.

Right to credit on fine of time spent in jail.
[Fines, § 1.]

For right to credit for time served under void sentence, see annotation in 9 A.L.R. 958 [Criminal Law, § 186].

Some cases hold that no credit will be allowed for time spent in jail, upon the fine of one who is imprisoned on account of his failure to pay the fine.

In McMeekin v. State (1873) 48 Ga. 335, it was held that execution could be issued against one's property to collect a fine and costs in a misdemeanor case, although the sentence provided that he should be kept in jail until they were paid, so long as the imprisonment did not exceed six months, and he had been so kept in jail six months and released. See dictum in Brock v. State (1857) 22 Ga. 98, and Hathcock v. State (1891) 88 Ga. 91, 13 S. E. 59, 9 Am. Crim. Rep. 705, to the effect that imprisonment in

default of payment of fine will not discharge the fine.

In Berry v. Sheehan (1888) 87 Ky. 434, 9 S. W. 286, although the question was not before the court, it was said, under a statute providing that a defendant could not be held in default of payment of a fine "for a longer period than at the rate of one day for each $2 of the fine," that the imprisonment would not discharge the fine, and that after the discharge it might still be made by a fieri facias.

In Warrensburg v. Simpson (1886) 22 Mo. App. 695, where one was released from imprisonment for nonpayment of a fine and costs when a sufficient amount of his property had been levied upon to cover the same, it was held that the imprisonment did not discharge the fine and costs.