My dissent is from the modification. I hold that the circuit court judgment should be affirmed in all respects. Initiated Act No. 1 of 1942 was voted by the people at the general election; the Act provides that the first and second violations constitute misdemeanors and result in a fine. All of the appellant's violations in the case at bar were "first offenses," because he had not been convicted of any previous violations at the time he was tried and convicted in the case here. So, under the Act, the appellant was fined. Section 3 of the Initiated Act provides "if any person so convicted be punished by a fine only, if such fine be not paid immediately, he shall be confined in the state penitentiary at hard labor until such fine and costs *Page 649 be paid at the rate of $2 per day." The majority opinion says that this act contains an "irreconcilable conflict in its provisions"; and then the majority proceeds to substitute confinement in the county jail in lieu of confinement in the state penitentiary. I insist that the statute should be enforced as written.
In the attempt to demonstrate an "irreconcilable conflict," the majority reasoning is in successive steps about as follows: (1) the commitment to jail or penitentiary is a part of the punishment; (2) the commitment to the penitentiary makes the offense a felony, (3) first violations of the liquor act are misdemeanors; so (4) there can be no commitment to the penitentiary in default of payment of the fine. On these successive steps of reasoning, the majority is striking out of the statute the mandatory language directing the commitment to the penitentiary, and substituting in lieu thereof the majority-made legislation to the effect that the appellant should be committed to the county jail.
There are several answers to the majority's reasoning; one being, (a) that the distinction between felony and misdemeanor is of statutory origin only, and that the people by this initiated act could have changed the distinction between felony and misdemeanor; another being, (b) that the majority fails to give any effect to the holding of this court in Burrell v. State, 203 Ark. 1124,160 S.W.2d 218.
But rather than press either of these points, I prefer to go to the first step of reasoning advanced by the majority; that is, that the commitment is a part of the punishment. When I destroy that point, then all the other steps of reasoning in the majority opinion must necessarily fail. I contend (1) that the fine was the punishment; (2) the commitment was merely a means of collecting the fine; (3) the commitment is no part of the punishment.
This court, leading text-writers, and all the courts of last resort of the other states (so far as I have been able to ascertain) hold that the means of collecting a fine is *Page 650 not a part of the punishment. The commitment, whether to the county jail or to the penitentiary, is not the punishment, but merely a means of collecting it. I cite and quote from some of these:
(1) Mr. Justice RIDDICK, in ex parte Brady, 70 Ark. 376,68 S.W. 34, speaking for this court in 1902, said:
"It will be seen from these and other statutes that the imprisonment which follows the failure to pay the fine assessed by the court is not now a form of punishment substituted for the fine, but is a means adopted to compel the payment of the fine."
(2) In 15 Am. Juris. 184, in discussing "Commitment as a Part of Punishment," the rule is stated:
"Committing a prisoner to jail until a fine is paid is no part of the punishment. The penalty, or the punishment adjudged, is the fine, and the custody adjudged is the mode of executing the sentence, that is, of enforcing the payment of the fine. This is in accordance with the common law."
(3) In 25 C.J. 1157, in discussing imprisonment to collect a fine, the rule is stated:
"A direction in a sentence imposing a fine that defendant stand committed until the fine is paid is no part of the penalty for the offense, but is merely a means of compelling obedience to the judgment of the court. If he refuses to pay, he is not sentenced to a term in prison; the duration of his imprisonment is in his own control; by payment of the fine he can at any time secure his release. The sentence is not, therefore, open to the objection that the magistrate rendering it has no jurisdiction of offenses which are punishable by imprisonment."
(4) Likewise, in 36 C.J.S. 788, the rule is stated:
"Imprisonment of defendant until the fine is paid is no part of the penalty for the offense, but is merely a means of compelling obedience to the judgment of the court. If he refuses to pay, he is not sentenced to a term in prison; the duration of his imprisonment is in his own *Page 651 control; by payment of the fine he can at any time secure his release. . . . The sentence is not, therefore, open to the objection that the magistrate rendering it has no jurisdiction of offenses which are punishable by imprisonment."
(5) In 16 C.J. 1367, in discussing imprisonment for failure to pay a fine, the rule is stated:
"When a fine is imposed as a punishment, according to the weight of authority, it is within the common-law power of the court to direct that defendant stand committed until it is paid. In some jurisdictions, however, imprisonment in default of payment of fine is illegal, unless the court is authorized expressly by the legislature to impose it. The practice and authority for directing that one ordered to pay a fine stand committed until it is paid is now commonly authorized by statute. This is a proper means for the collection of a fine, and is not regarded as a part of the punishment. It is not, therefore, open to the objection that the magistrate has no jurisdiction of offenses which are punishable by imprisonment."
(6) In 127 A.L.R. 1286, there is an annotation on the subject, "Character as Felony or Misdemeanor of Offense for Which a Fine is Provided as Affected by Provision for Imprisonment Until Fine is Satisfied." That annotation is immediately following the reported case of McKinney v. Hamilton, 127 A.L.R. 1283, wherein the New York Court of Appeals reversed a holding of the Appellate Division. The opinion of the highest New York court was in accord with this dissent, and reversed the Appellate Division which had reached a conclusion similar to that reached by the majority in the case at bar.
(7) The courts of last resort in all the other states, so far as my search has disclosed, have reached the conclusion that the commitment is no part of the fine. Some of the cases so holding are: In re Newton, 39 Neb. 757,58 N.W. 436; State v. Baxter, 41 Kan. 516, 21 P. 650; In re MacDonald, 4 Wyo. 150, 33 P. 18; Ex parte Garrison,193 Cal. 37, 223 P. 64; Ex parte Peacock, *Page 652 25 Fla. 478, 6 So. 473. In 12 A.S.R. 202, immediately following the reported case of Ex parte Bryant, 24 Fla. 278,4 So. 854, there is a splendid annotation on "Right to Imprison until Fine is Paid," which gives the English common-law cases on this point. In Ex parte Converse,45 Nev. 93, 198 P. 229, the Supreme Court of Nevada, after quoting from 16 C.J. 1367 to the effect that the commitment is only a means for collecting the fine, and is not regarded as a part of the punishment, said:
"Of the courts which have had occasion to speak on this question, a great majority have reached the same conclusion that we have; the last to fall in line being that of Idaho. State v. Goodrich, 196 P. 1043. See, also, ex parte Londos, 54 Mont. 418, 170 P. 1045; State v. Peterson, 38 Minn. 143, 36 N.W. 443; Ex parte Dockery, 38 Tex. Crim. 293,42 S.W. 599; Irvin v. State, 52 Fla. 51,41 So. 785, 10 Ann. Cas. 1003; Bishop, New Crim. Proc., 1301; In re Newton, 39 Neb. 757, 58 N.W. 436; In re Beall,26 Ohio St. 195; State v. Merry, 20 N.D. 337, 127 N.W. 83."
I forego a citation of all the other cases on this point; but I trust I have listed enough authorities to establish that the commitment is not a part of the punishment. The appellant herein was fined for violating Initiated Act No. 1 of 1942. He made bail pending appeal. He could pay the fine, and be free. In default of paying the fine, I hold that he should be committed to the penitentiary just as the act clearly directs. I hold to this opinion, since the commitment is not a part of the punishment, but is merely a means of collecting it. The people, in adopting Initiated Act No. 1 of 1942, had a perfect right to provide that upon failure to pay the fine, the convicted person could be imprisoned in the state penitentiary. I submit that the action of the majority in modifying this statute is against the holdings in all the other states. From the modifying of the judgment of the circuit court, I respectfully dissent; and I am authorized to state that the Chief Justice joins in this dissent. *Page 653