Ex parte Karlson

Petitioner has been held in custody by the sheriff of the county of Los Angeles on a commitment for

Petitioner’s principal and only serious objection urged upon the hearing of this matter was directed to the method whereby the fine imposed- was to be satisfied, therefore we need only consider the punishment sought to be inflicted. Under the terms of the commitment a fine of two hundred dollars was imposed upon this petitioner and it was further provided that “upon his failure to pay such fine he be committed to the county jail until such fine is paid at the rate of one day’s imprisonment.for each two dollars of said fine.” When the petition for a writ of habeas corpus was filed Karlson had been in custody for non-payment of his fine under this commitment for a period of more than five days, but not long enough to entirely satisfy the fine by imprisonment. The question for us to determine, therefore, is this: May a court enforce payment of a fine imposed upon one found guilty of contempt by commitment to prison for more than five days ?

Petitioner concedes that the court had jurisdiction to impose a fine of two hundred dollars (Code Civ. Proe., sec. 1218), and that such fine may be enforced by an execution as is a judgment in a civil action, but he insists that sections 1218 of the Code of Civil Procedure, and 1205 of the Penal Code, are binding upon the court and determinative of the whole matter. The former section provides that a court has jurisdiction to punish for contempt by fine not exceeding five hundred dollars, or by imprisonment for not more than five days, or by both such fine and imprisonment; but section 1205 of the Penal Code ordains that imprisonment as a means of enforcing the payment of a fine shall not “extend in any case beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted.” Petitioner’s position would be impregnable if we were bound by the provisions of section 1205 of the Penal Code.

Before the amendment to that section limiting the term of imprisonment for satisfaction of a fine to a period equal to the

It will be noted that in the opinion in In re Tyler, 64 Cal. 438 , [ 1 Pac. 887 ], the court made no reference to section 11 of the Penal Code, and doubtless, that section was not called to the attention of Mr. Justice McKee, who wrote the opinion from which some of the language quoted above is called to our attention by petitioner’s counsel. In that opinion, however, and in the concurring opinions signed by four other justices, Ex parte Crittenden, 62 Cal. 535 , is expressly affirmed, and no case has been called to our attention changing the rule there announced. In that ease the court said: “But it is claimed that it was not competent for the court to imprison the petitioner under an order or judgment simply imposing a fine. In the case of New Orleans v. Steamship Co., 20 Wall. 392 , [ 22 L. Ed. 354 ], the supreme court of the United States says: ‘Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were a judgment upon an indictment for perjury committed in a deposition read at the hearing. ... In Crosby’s Case, 3 Wilson, 188, Mr. Justice Blackstone said: “The sole adjudication for contempt, and the punishment thereof, belongs exclusively and without interfering to each respective court.” ’

“The question of contempt of court and the punishment thereof has recently undergone a thorough examination in the case of Fischer v. Hayes, 7 Fed. 96 . In that case Blatehford, J., says: ‘It is suggested that section 725 [Rev. Stats., U. S. Comp. Stats., 1901, p. 583], provides for the punishment of a contempt by a fine or imprisonment, and that, therefore, a commitment for nonpayment of the fine is unlawful, because such commitment is “imprisonment.” There is, however, no commitment or imprisonment if the fine be paid. There is no commitment and fine. The punishment by a fine is fully inflicted, under the terms of the order, if the fine be paid as the

The common law of England is the law of this state, so far as. it is not repugnant to our own statutes and constitution. (Pol. Code, sec. 4468.) The rule of the common law that the payment of a fine might be enforced by imprisonment until the fine is paid, was the uniform practice of the common law courts in England, time out of mind, as may be seen by a perusal of the decisions of the court of kings bench. “Directing that the prisoner shall stand committed till the fine, or till the fine and costs are paid, is not adding to the legal punishment, but simply a mode of enforcing obedience to the sentence of the law. The usual form of the common-law judgment is, that the prisoner stand committed till the fine is paid.” (Dodge v. State, 24 N. J. L. 466 .) There is abundant authority to this effect in addition to the cases already cited. (See 8 Ency. of Plead. & Prac. 961; Rex v. Waddington, 1 East 166; Rex v. Wilkes, 4 Burr. 2574; Harris v. Commonwealth, 40 Mass. (23 Pick.) 280 ; Brock v. State, 22 Ga. 100 ; McMeekin v. State, 48 Ga. 335 ; Hathcock v. State, 88 Ga. 91 , [ 13 S. E. 959 ]; In re Newton, 39 Neb. 760 , [ 58 N. W. 436 ]; State v. Manning, 14 Tex. 402 ; Bishop on Criminal Procedure, see. 1310.) The provision of the Code of Civil Procedure that courts may punish a contempt by imposing a fine is consistent with this rule of the common law as to the method of enforcing its payment.

The Penal Code declares, in effect, that the provision that no act shall be punishable as a crime except such as may be made a crime by statute, and then only in the manner prescribed or authorized by statute (sec. 6), shall not apply to contempts punishable under section 1209 of the Code of Civil Procedure (sec. 11). It necessarily follows that the Penal Code has no application to a civil contempt, and that, the question whether the particular act is punishable as a criminal contempt or not, under section 166 of the Penal Code, is immaterial to any inquiry arising in a contempt proceeding under section 1209. If, after such punishment in such civil proceeding, a person is convicted of the same act as a crime under said section 166, the former punishment may mitigate the severity of the sentence upon the subsequent conviction. (Pen. Code, sec. 658.)

The danger that persons may be imprisoned for an unlimited period for non-payment of a fine for contempt is, as we think, completely removed by the constitutional guaranty that, “excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted.” (Art. I, sec. 6.) There would be, also, perhaps, recourse to the pardoning power in extreme cases.

It follows herefrom that there is no merit in petitioner’s contention, therefore the writ is discharged and the petitioner is remanded.

Shaw, J., Sloss, J., and Lorigan, J., concurred.

I dissent. It is practically

held by the opinion that, section 1205 of the Penal Code having no application to proceedings for contempt under sections 1209 et seq. of the Code of Civil Procedure, any court imposing a fine upon a person as a punishment for contempt may direct that he be imprisoned until such fine is paid. The limitation of section 1205 of the Penal Code, not being applicable, and no limitation being elsewhere made by our statute law, such imprisonment may be continued indefinitely, and as it is held with practical unanimity that imprisonment for mere nonpayment of a fine is not imprisonment for debt, and it being reasonably clear that the contempt in such a case as this is a criminal as distinguished from a civil contempt and that mere inability to pay the fine will not be a sufficient warrant for discharge from imprisonment under section 1143 et seq. of the Code of Civil Procedure (see In re Wilson, 75 Cal. 580 , [ 17 Pac. 698 ]), such imprisonment may be continued indefinitely even though the imprisoned party is without any property from which to pay such fine. Such imprisonment may be ordered by any court of justice, including a justice’s court. This is the necessary effect of the opinion. And this conclusion is reached although there is no provision in the law applicable to such contempt proceedings that expressly or impliedly authorizes imprisonment- for non-payment of a fine.

In my opinion, if section 1205 of the Penal Code has no application in such cases, it follows that a court is without power to imprison for mere non-payment of a fine imposed by it as a punishment for contempt of court in proceedings had under section 1209 et seq, of the Code of Civil Procedure.

The punishment that may be prescribed for such contempts is expressly specified in the statute. “A fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both.” (Code Civ. Proc., sec. 1218.) Section 1219 of the Code of Civil Procedure specifies the only case in which other imprisonment may be required, being as follows: “When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he has performed it, and in that case the act must be specified in

This being the condition of the statutory law in this state, the opinion necessarily proceeds upon the doctrine declared in Fischer v. Kayes, 6 Fed. 71 , “that where a statute authorizes or prescribes the infliction of a fine as a punishment, either for a contempt of court or for a defined offense, it is lawful for the court inflicting the fine to direct that the party stand committed until the fine be paid, although there be no specific affirmative grant of power in the statute to make such direction.” It is to be observed that no distinction is made here between contempts of court and other offenses. In any case, the power to impose a fine carries with it the power to adjudge imprisonment for non-payment of the fine and until the fine be paid.

I do not think that the doctrine of this case can properly be held applicable in this state. It is generally recognized that a judgment imposing a fine in a contempt matter, where the fine is solely punitive and in no way remedial, stands on the same plane as a judgment imposing a fine in the ease of an ordinary criminal prosecution. (7 Am. & Eng. Ency. of Law, 2d ed., p. 67.) The fine is simply a punishment for an offense. The supreme court of Ohio in Brown v. State, 11 Ohio, 277 , where a defendant was convicted of crime and judgment of fine given, with a commitment to imprisonment until the fine and costs were paid, held that the commitment was unauthorized, saying: “Wien common law jurisdiction is entertained, and courts proceed according to its course, this power exists; but when offenses are statutory, punishments regulated by statute, and no such authority of commitment is declared, it is a power not inferred, does not exist, and cannot be exercised.” In Lougee v. State, 11 Ohio, 72 , the same court said: “Unless

It has been held in New York that where a statute authorizing "a fine on conviction of a public offense prescribes a particular method for the enforcement, as by docketing the fine and issuing execution thereon, the court has no authority to

There is no opinion of this court that contains anything in conflict with the foregoing other than the opinion in Ex parte Crittenden, 62 Cal. 534 . The decision in Ex parte Abbott, 94 Cal. 333 , [ 29 Pac. 622 ], was by the chief justice in a matter heard and decided by him alone, and he very properly considered himself bound, as expressly stated in his opinion, by the opinion of the court in Ex parte Crittenden, 62 Cal. 534 . The whole discussion of the question at bar in the opinion of the court in the case last mentioned consists of the quotation from Fischer v. Hayes, 6 Fed. 71 , set forth in the main opinion herein and no question appears to have suggested itself as to the applicability of the doctrine therein enunciated in view of such statutes as we have in this state. As already indicated I believe that the opinion in Ex parte Crittenden, 62 Cal. 534 , is erroneous and that it is directly in conflict with Ex parte Rosenheim and kindred cases, and that the views therein expressed should be disapproved by this court.

I do not desire to be understood as assenting to the view that section 1205 of the Penal Code has no application in such cases as this. It has never been so held by this court, the only decision to that effect in our reports being Ex parte Abbott, 94 Cal. 333 , [ 29 Pac. 622 ], a decision made by a single justice. It may be that section 11 of the Penal Code, on which that decision is based, can reasonably be held to have no reference to such contempts as are purely criminal as distinguished from civil. If section 1205 of the Penal Code does apply, the time during which the petitioner may be imprisoned for mere nonpayment of the fine had expired. If it does not apply, there was never, in my opinion, any authority for his imprisonment at all for such non-payment.

The decisions from other states cited in the majority opinion, with the exception of the Georgia decisions, will each be found upon examination to be based upon the conclusion that a statute of the state either expressly or by necessary implication

For the reasons stated, I am of the opinion that the petitioner should be discharged from custody.

Henshaw, J., concurred.