In State v. Benson, 28 Minn. 424, the defendant was charged before a justice of the peace under § 23 of chap. 124 of Minn. Gen. Stat. 1878, with procuring food, entertainment, and accommodation without paying therefor, and with intent to cheat and defraud the botel keeper of the same, and with removing his baggage from the hotel with a like fraudulent intent, and his contention was that the statute was unconstitutional for the reason that it attempted to imprison for debt. The courting to oleomargarine, which had for its object the held the contrary, the statute imposing the penalty, not because, nor for the purpose, of collecting the debt, but because of the fraud, and that therefore a prosecution and punishment under such statute in no way affected the debt.

fined, and imprisoned at hard labor, and this obviously not for any taint of criminality in the transaction out of which the debt arose, but purely and simply for the nonpayment of the debt. For this default, and until it is purged either by simply paying the debt and

not be two opinions as to the intent and mean- | shall be arrested, held to trial, tried, convicted, ing, or the effect upon the whole enactment, of this last and most remarkable provision. It is a declaration of the baldest and most direct character to one party to a transaction, whereby he has incurred a debt to the other, in the name of the state, that, unless he pays that debt, he meanors, and such fines are not debts within the meaning of the Constitution. Dixon v. State, 2 Tex. 481.

cause of action must be a fine or penalty and not something of a penal character, the court not being disposed to order the arrest of a citizen in a doubtful case, or to strain a statute in that direction,-especially for the sake of calling a debt a penalty in order to procure an arrest while the law had abolished imprisonment for debt.

And it has been held that although the court has power to imprison a party for disobeying its lawful order as to property in a civil case when having power to comply with the order, yet the court has no power, upon making an order committing the party, to impose a fine or imprisonment as punish

In upholding the constitutionality of the Texas act of 1836, § 47, 1 Stat. 187, passed for the punishment of crimes and misdemeanors, the court stated that it could not have been the intention of the legislature to degrade the subject of misfortune to the level of the criminal, and to confound debt and crime, and that there was nothing to be found in the legislature of the country to warrant such a supposition, but on the contrary they had been made the subject of distinct and quite dissimilar provisions, the constitutional guaranty hav-ment for contempt, neither has it power to adjudge ing been given as a shield to protect the unfortu- the payment and imprisonment until the costs and nate debtor, the act of 1836 having been enacted to expenses are paid in favor of the opposite party, punish, and thereby restrain, the offender against for the reason that by so doing it would contravene the laws of society, and that fines and costs im- the provisions of the Missouri Constitution prohibitposed for offenses were not so properly the princi-ing imprisonment for debt. Ex parte Crenshaw, 80 pal as an incident; not the end, but a means of enforcing obedience to the laws, and that the object of the imprisonment authorized by the 47th section of the act in question was not so much to enforce payment as to insure punishment, the great object ⚫ and design of the penal laws being the prevention of crime. Dixon v. State, supra.

Again, in Ex parte Robertson, 27 Tex. App. 628, the petitioner applied by way of habeas corpus to be released from imprisonment for contempt of court in the nonpayment of a fine imposed for a civil contempt, upon the ground that the fine and imprisonment inflicted were imposed for the purpose of securing and enforcing the payment of a debt due to the plaintiff in a sequestration suit, and therefore in contravention and violation of the 18th section of the Bill of Rights of the Constitution, art. 1, which declares that no person shall ever be imprisoned for debt; but the court held that such fine was not a debt within the meaning of the Constitution.

And in Graham v. Chicago, M. & St. P. R. Co. 53 Wis. 473, 478, it was stated that nowithstanding the state Constitution abolishing imprisonment for debt, arising out of or founded upon contract, express or implied, yet the statutes of that state had always provided that the defendant might be arrested and held to bail in an action to recover a forfeiture or a penalty.

In Re MacDonald (Wyo.) 33 Pac. 18, 20, the petitioner, convicted and fined for the publication of an unlawful and malicious libel, contended that his imprisonment for nonpayment of the fine was contrary to art. 1, § 5, of the Wyoming Constitution, which provides no person shall be imprisoned for debt except in cases of fraud; but the court held that such imprisonment could not be considered as imprisonment for debt within the meaning of the Constitution.

But in Glens Falls Paper Co. v. White, 58 How. Pr. 172, upon a motion for an order to arrest the defendant in an action to recover a debt owing the plaintiff by the association, under a statute making the trustees of such association who failed to file a report liable for the debts of the association, the plaintiff contending that such debt was a penalty inflicted upon the defendant by reason of the noucompliance with the law, the court held that the debt thus incurred was not a fine or penalty within the meaning of subdiv. 1, § 549, of the Code of Civil Procedure, and therefore denied the motion. The court stated that to subject a party to arrest, the

Mo. 447, 456.

See also State v. Paint Rock Coal & C. Co. 92 Tenn. 81, infra, VII.

b. Fines imposed by city authority.

With respect to fines and penalties inflicted upon a defendant for the violation of city ordinances, the courts have almost unanimously held that the imprisonment inflicted upon the defendant is no violation of the constitutional provisions.

Where the execution is levied against the body of the offender for the violation of a city ordinance and the charter of the town gives such remedy, the provisions of the Constitution are not thereby violated. Brown v. Jerome, 102 Ill. 371.

In Hardenbrook v. Ligonier, 95 Ind. 70, it was contended that the penalty imposed by the ordinance of the town regulating the sale of intoxicating liquors which was by way of imprisonment in case of conviction and failure to pay the fine assessed, was contrary to the provisions of the Indiana Constitution prohibiting imprisonment for debt. The court held that a penalty accruing for a breach of an ordinance of a municipal corporation was not a debt within the meaning of the section of the Constitution, the court citing in support of its authority, McCool v. State, 23 Ind. 127. To the same effect, Lower v. Wallick, 25 Ind. 68; Turner v. Wilson, 49 Ind. 581; McIlvain v. State, Emery, 87 Ind. 602; Flora v. Sachs, 64 Ind. 157; Lane County v. Oregon, 74 U. S. 7 Wall. 71, 19 L. ed. 101; Dunlop v. Keith, 1 Leigh, 430, 19 Am. Dec. 755; Caldwell v. State, 55 Ala. 133; Hibbard v. Clark, 56 N. H. 155, 22 Am. Rep. 442; Camden v. Allen, 26 N. J. L. 398.

A city charter authorizing the confinement of offenders against the by-laws and ordinances of the city until the fines and costs are paid, or discharged by labor, or otherwise, and making the costs a part of the punishment or penalty, do not conflict either with the provisions of the Kentucky statutes or Code, neither are they in conflict with the state or Federal Constitution. Berry v. Brislan, 86 Ky. 5, 9, 10.

Where in proceedings for the violation of a city ordinance, it was contended that the petitioner was entitled to be discharged, for the reason that he was not proceeded against in the name of the state but was sued in the name of the city if a civil action, and that the recovery had was for a debt, and therefore as there was no imprisonment for debt in that state (Missouri) he was illegally held in custody, the court stated that while there could

accrued costs before conviction or by working | shall have the desired effect of extorting the out double the debt and the costs, the debtor may be imprisoned for an indefinite time before trial, merely and only because he does not pay the debt and the expenses of putting this coercion upon him, there being no pretense even of ultimately punishing him for taking the deposit, if the preliminary imprisonment

not be any imprisonment for debt in that state, yet imprisonment for the nonpayment of a fine duly imposed was fully authorized, the constitutional provision interpreting itself; and this was so even though in one sense it might be said that every fine imposed for a violation either of a law of the state or an ordinance of a municipal corporation, either in criminal proceedings by the state or in a civil proceeding quasi criminal, in the name of the corporation, was a debt against the party upon whom it was imposed and who was adjudged to pay it; still it was nevertheless a debt for a fine for the nonpayment of which the party against whom it was adjudged might be imprisoned. Ex parte Hollwedell, 74 Mo. 395, 400.

money he owes the depositor out of him; and if, as is the case here, the compulsion of preliminary imprisonment fails of its intended effect, he may, under the guise of punishing an act which was not criminal before this statute, and which upon the statutory definition does not necessarily involve abstract criminal

In Ex parte Russellville, 95 Ala. 19, the charter of the municipality gave authority to the city offi cials to impose hard labor or imprisonment in case of nonpayment of the fine and costs on conviction for violating the liquor law, "until the fine and costs are paid." It was held that the act did not contemplate hard labor or imprisonment as alternative punishment, or as punishment to be imposed in lieu of the fine, but as a means of coercing the payment of the fine, and that while it might be that the defendant could be put to hard labor at a reasonable rate of compensation, for a sufficient length of time for his earnings to equal the fine and costs, yet, in so far as the provision in question undertook to authorize his imprisonment until the fine and costs were paid, it was inoperative and void, othewise the imprisonment might be for a period as indefinite as the duration of the defendant's life, and have much in common with imprisonment for debt, which was forbidden by the organic law, hence involved the violation of the policy of general jurisprudence.

So, in Deadwood v. Allen (S. D.) 68 N. W. 333, where the complaint charged the violation of a city ordinance and defendant contended that unless the action was criminal the enforcement of such ordinance by imprisonment for the fine imposed was contrary to § 15, art. 6, of the Bill of Rights, the court held that such contention was not sustainable as the provisions in the Bill of✔ So, in Odell Trustees v. Schroeder, 58 Ill. 353, it Rights in question related only and expressly "to debts arising out of or founded upon a contract" and therefore such imprisonment was not contrary to the Constitution.

In Mosley v. Gallatin, 10 Lea, 494, where the keeping of gaming tables was made a misdemeanor by $10 of chap. 15 of the by-laws and ordinances of the defendant corporation, the penalty being a fine of not less than $3 nor more than $50, and the court in its judgment directed that if the fine and costs be not paid or secured the defendant should be committed to the workhouse until the same were paid, and it was insisted that the act was 'repugnant to the state Constitution, § 18, art. 1, which prohibited imprisonment for debt, and which provided that the legislature should pass no law authorizing imprisonment for debt in civil cases,-the court held that such provisions in the Constitution had no reference to the enforcement of the collection of fines, penalties, and costs from the defendants, who had been convicted of misdemeanors and the violation of the statute of the state, or the ordinances of a municipal corporation, and that therefore the court had power to make such order against the plaintiff in such action.

was held that a town officer had no power to imprison, or take in custody, one against whom a verbal order of commitment for nonpayment of a fine had been made by a police justice, for breach of a town ordinance, for the reason that the liberty of the citizen cannot be so trifled with, the Constitution prohibiting it, such imprisonment not being a rightful imprisonment through proceedings appointed by the law.

And where the action was brought to recover a penalty for the violation of an ordinance prohibiting the sale of liquors without a license, and judgment was rendered against defendants, and they were committed to jail until fine and costs were paid, it was held upon appeal that the county court erred in adjudging imprisonment against defendant, the action being in debt and the suit a civil one. Kinmundy v. Mahan, 72 Ill. 462, 464.

See also, Ex parte Kiburg, 10 Mo. App. 442; Chicago v. Kenney, 35 Ill. App. 57, 66, supra.

V. Taxes as debts.

In cases where it has been sought to enforce the payment of taxes by attachment and imprisonment, the question has been raised whether such proceedIn Markle v. Akron, 14 Ohio, 586, 591, it was held ings are unconstitutional as being contrary to the that an ordinance prohibiting the sale of intoxicat-provisions of the state Constitutions prohibiting ing liquors under a penalty was constitutional, and that the proceedings under such ordinance were in the nature of an action for debt, although quasi criminal in their nature.

Where jurisdiction was by the city charter expressly given to the mayor's court for the recovery of fines, forfeitures, penalties, debts, and other demands recognizable in the city court, "it was held that the exercise of such jurisdiction was clear of all objections on constitutional grounds, but where the by-law of a city corporation enacted a penalty for a misdemeanor, and imposed imprisonment in default of payment on conviction by the mayor, it was held void; and even though the city charter did give him a right to imprison on summary conviction, and without appeal to a jury, it was held that such charter would be so far unconstitutional and void. Barter v. Com. 3 Peur. & W.

253.

imprisonment for debt. The courts have, however, for the most part, held such proceedings regular, holding that taxes are not debts within the constitutional inhibition.

Taxes are not debts within the meaning of the Constitution of the United States. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purposes, and is not founded upon contract. It does not establish the relation of debtor and creditor between the taxpayer and the state. It does not draw interest, and it cannot be pretended that an act providing for the collection of debts would include, by force merely of the term "debt," the collection of taxes also. Perry v. Washburn, 20 Cal. 318, 350.

So, in Geren v. Gruber, 26 La. Ann. 694, 697, it was said that taxes were not debts in the ordinary sense of that word, but were forced contributions for the

ity or the taint of moral turpitude, and which, There can, in our opinion, be no sort of doubt might up to the very moment of conviction have been shorn of even its factitious criminality by the payment of a debt, be held to hard labor until his services at the statutory rate shall yield the amount of the debt, and for an equally long time to work out a like sum imposed upon him as an additional penalty for his failure to pay the debt before conviction.

support of the body politic, and it was competent for the sovereign to provide how these contributions should be collected, and to say whether the right of preference should exist and for what length of time. In that case, however, the question as to whether a tax was a debt did not arise in proceedings in which it was sought to imprison the delinquent taxpayer for nonpayment, but the proceedings were such as that he sought to enjoin the tax collectors from a sale of the tax premises.

So, in Camden v. Allen, 26 N. J. L. 398, 402, where an action of debt was brought for the recovery of taxes assessed by the city authorities, it was held that a tax was not a debt, neither was it in the nature of a debt, but was an impost levied by authority of the government upon its citizens or subjects for the support of the state, and that the remedies for its recovery were more stringent than that which the action of debt would afford, particularly | in the coercive power in imprisonment.

|

that this enactment is violative of the constitutional provision, and therefore void. The trial court erred in overruling the demurrers which went to this point, and the motion in arrest of judgment based upon them. Its judgment will be reversed, and a judgment will be here entered discharging the defendant. Reversed and rendered.

citizen of that state, who was liable to taxation by reason of his property, did not acquire an exemption from taxation or from arrest for nonpayment of the taxes by enlisting in the United States army. In Com. v. Byrne, 20 Gratt. 165, 184, the petitioner sought to be released from imprisonment for the nonpayment of a tax, upon the ground, inter alia,. that the law authorizing an arrest and imprisonment in such cases was unconstitutional and void by virtue of article 5 of the Amendments to the Constitution of the United States, which declares that no person shall be deprived of life, liberty, or property without due process of law, and also contrary to that part of clause 10 of the Bill of Rights, art. 1 of the Constitution of Virginia, which declares that no man shall be deprived of his liberty except by the law of the land, or the judgment of his peers. The court held that such bill was not contrary to either Constitutions and that the payment of such taxes could be compelled by imprisonment when no personal property was found, the 5th article of the Amendment of the United States Con

Again, in State, Linn, v. O'Neil, 55 N. J. L. 58, it was said that taxes were not debts in the ordinary acceptation of the term, and that therefore statu-stitution being a limitation of the power of the tory measures might be resorted to for their collec- national government inapplicable to state legislation. The Revised Statutes of this state, p. 1143, tion. $ 18, give power to arrest the body of the delinquent taxpayer where no goods, etc., of his are found wherewith to satisfy the demand.

And in Charleston v. Oliver, 16 S. C. 47, 52, the question arose whether a license tax was a debt in the sense of the word as used in the clause of the state Constitution which abolished imprisonment for debt, except in cases of fraud. The court held that it was not, stating that there was not any doubt but that the framers of the Constitution, and the people who adopted it, designed to use the word "debt" in the clause under consideration in its ordinary sense, and did not intend that it should be held to embrace taxes levied for the support of the government, or any of its agencies; the manifest object was to deprive the citizen of the power to have his fellow citizen imprisoned for nonpayment of his debt, which power in the hands of private individuals had long been a subject of discussion, and had been previously circumscribed by enactment by the legislature of the insolvent debtors' and prison bound acts, which had no application to taxes, and the object of the clause in question undoubtedly was still further to limit this power by confining it to cases of fraud. 1

So, in Appleton v. Hopkins, 5 Gray, 530, 532, the question was whether the laws authorizing the arrest of a party on a warrant in distress for the nonpayment of a tax assessed pursuant to the laws of the commonwealth, had been repealed by the Statute of 1855, chap. 444, abolishing imprisonment for debt and punishing fraudulent debtors. The court held that such statute had no application to the case of imprisonment for the nonpayment of taxes, even though the language of the statute "impris onment for debt is hereby forever abolished in Massachusetts" was pointed and emphatic.

In Appleton v. Hopkins, supra, it is said that in a certain large and general sense taxes may be said to be debts due to the commonwealth, the county, town, and parish respectively, but in the mode of collection and enforcement they have always been regarded as distinct. The special provisions by statute for their allowance implies that they would not in the view of the legislature be included undera general provision of law respecting debts.

therefore void.

Again, road assessments or levies are not debts within the meaning of the constitutional provision abolishing imprisonment for debt. Re Dassler, 35 Kan. 678, 684.

But in Cooper v. Savannah, 4 Ga. 68, a tax had been imposed by the city ordinance upon free persons of color, and in case of nonpayment the act provided that such persons should be arrested and In Webster v. Seymour, 8 Vt. 135, 140, the court committed to the common jail, and there confined stated that in the most extensive sense of the term until the same was paid. It was held that such im"debt," everything was a debt which was of abso-prisonment was illegal by the laws of the state, and lute obligation, but in its more limited sense it imports only a particular kind of duty, and in that sense was substantially synonymous with contract; that in that sense it was more generally used in statutes relating to the executions of process, and especially in those which were intended to mitigate the rigor of the common law; and to create certain privileges and exemptions in behalf of a debtor; that it was a distinctive term and had reference in such cases to a distinction between different classes of debtors while founded in the nature of things, and which had an important bearing upon statutory provisions of that character, and that the common use of the term, in similar statutes, required that it should be taken in its limited sense, and therefore a

VI. Costs as debts.

With respect to the constitutionality of the imprisonment of a debtor for the nonpayment of the costs in an action, the question would seem largely to depend upon the question whether such action is civil or criminal in its nature, and also upon the question whether the action, if civil, arises from contract, express or implied, or from a tort committed by the defendant. The courts hold cases of