Writing a dissenting opinion cannot change the result in this case because the court did not reserve to the defendant the right to apply for a rehearing, when the case was decided against him, on the rehearing that was granted to the state. But the court's ruling in the case, with regard to section 980 of the Revised Statutes, seems to me so very wrong that I am impelled to do what I can to see it corrected some day.
In the first opinion handed down in this case, I failed to cite the decision in State v. *Page 230 Ryder, 36 La. Ann. 294; and it was also overlooked by the court and council while the case was pending on rehearing. I believe that the court would have followed the ruling in that case if we had been reminded of it before the ruling in this case became final. Ryder was convicted of the crime of inflicting a wound less than mayhem, and was sentenced to pay a fine of $500 and to be imprisoned for the term of 2 years, "and in default of said fine at the expiration of said sentence, to suffer additional imprisonment at hard labor in the state penitentiary for one year, and to pay all costs." This court held that the sentence of imprisonment was illegal in so far as the term exceeded the maximum term allowed by the statute denouncing the crime of inflicting a wound less than mayhem. The court said:
"The legality of the sentence quoted above is denied.
"Section 794, R.S., provides:
"`Whoever shall, with a dangerous weapon or with intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction, be imprisoned not exceeding two years nor less than six months, with or without hard labor, and be fined not exceeding one thousand dollars.'
"Section 980, R.S., provides that:
"`Every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year.'
"The first section limits the term of imprisonment within two years and leaves it discretionary with the judge to make it with or without hard labor.
"Of course, if this section stood alone, the sentence in question would be excessive and unwarranted.
*Page 231"Is there anything in the last section [meaning 980 R.S.] that authorizes the judge to inflict a punishment, for this offense and for non-payment of the fine, of more than two years' imprisonment at hard labor? Unless the last provision furnishes a clear warrant for such punishment, beyond two years — the extreme limit declared in the first section mentioned — it cannot prevail against the positive declaration of the first. Criminal statutes, especially those providing or declaring the penalties of the law, must be strictly construed."
In the opinion handed down by Justice DAWKINS, in this case, it is said that the court has adopted the dissenting opinion that was handed down by Justice LAND, and that the court desired also "to point out the differentiating features of the cases cited by the Chief Justice in support of the conclusion reached in the opinion delivered by Division A." Justice DAWKINS quotes the penal clause of the ordinance that was violated in one of the three cases which I referred to (which were all alike), to show that the ordinance itself put a limit upon the fine and the term of imprisonment that could be imposed for a violation of it. In that respect, there was no difference between the ordinance and the Hood Act, except that the language of the ordinance was redundant. It declared — as quoted by Justice DAWKINS — that the penalty was a fine not exceeding $25 or imprisonment for a term not exceeding 30 days, or both the fine and imprisonment, and then it repeated:
"Or imprisonment in said parish prison for a term not to exceed thirty (30) days in default of the payment of said fine; provided that the fine shall not exceed twenty-five ($25) dollars for each offense, nor the imprisonment more than thirty (30) days."
The writer of the ordinance, manifestly, having made it complete, was yet determined to work in exactly the language of the statute (Act 41 of 1890, p. 33, limiting the city's power of enforcing ordinances), which was itself somewhat redundant, viz.:
"By fine or imprisonment, or both, or by imprisonment in default of the payment of the fine; provided, that the fine shall not exceed twenty-five dollars for each offense, nor the imprisonment [be] more than thirty days, as provided by section 12 of Act 131 of 1877."
The expression "or by imprisonment in default of the payment of the fine," after the statement "by fine or imprisonment, or both," is sheer tautology. It means simply that the penalty shall be a fine not exceeding $25 or imprisonment for a term not *Page 232 exceeding 30 days, or both the fine and imprisonment, within those limits, in the discretion of the judge. The language cannot have any other meaning.
In this case, also, the statute (section 3 of Act 39 of 1921, as quoted in my original opinion and in Justice LAND'S dissenting opinion) limits the term of imprisonment that may be imposed in default of the payment of the fine.
The statute is very plain in this respect — and we all agree upon it — that, for violating the statute, otherwise than by selling intoxicating liquor, or manufacturing or having it for sale, the guilty party shall be fined not more than $500, or be imprisoned for a term not less than 10 nor more than 30 days, "or may be both fined and imprisoned," within those limits, "at the discretion of the court."
I adhere to our original ruling, that section 980 of the Revised Statutes, declaring that every person condemned to pay a fine shall, in default of payment or recovery of the fine, be sentenced to imprisonment for a term not exceeding a year, does not apply to a case where the statute that is violated fixes or limits the term of imprisonment which may be imposed as a penalty for that particular offense. Section 980 is applicable to those cases only where the statute itself, or ordinance, imposing a fine, does not provide for imprisonment, or limit the term of imprisonment, to be suffered in default of the payment of the fine. We had such a statute before us in State v. George Kilshaw (No. 26968) ante, p. 203, 103 So. 740, where the Act 12 of 1870 (section 2), without providing for any term of imprisonment for the first offense, declared:
"Whoever shall keep a banking game * * * shall, on conviction for the first offense, be fined not less than one thousand nor more than five thousand dollars," etc.
In a case like that, of course, the guilty party might be imprisoned for a term not exceeding a year, under section 980 of the *Page 233 Revised Statutes, as a means of coercing the payment of the fine. But when, as in this case, the statute declares that the penalty for a violation of it shall be a fine not more than $500 or imprisonment for a term not less than 10 nor more than 60 days, or both the fine and imprisonment within those limits, the court cannot impose the limit of both the fine and imprisonment and then add another year of imprisonment to be suffered in default of the payment of the fine.
In the dissenting opinion of Justice LAND, which the court has adopted on rehearing, it is said:
"It is true that the Legislature could have provided in the Hood Act that, in default of the payment of the fine, the convicted person should be imprisoned in the parish jail not more than sixty days. But the Legislature has failed to do so."
I suppose that the learned justice sees a distinction — though I do not see any difference or distinction — between saying that the penalty shall be a fine not exceeding $500 or imprisonment for a term not exceeding 60 days, and saying that the penalty shall be a fine not exceeding $500 or, in default thereof, imprisonment for a term not exceeding 60 days. The expression "in default of the payment of the fine," or "in the alternative." does not add to or change the meaning of a statute that declares that the penalty for violating it shall be a fine not exceeding so many dollars or imprisonment for a term not exceeding so many months, or both the fine and imprisonment within those limits, at the discretion of the court. If Justice LAND and the justices who have adopted his opinion agreed with me in that respect, the original opinion that was rendered in this case would have remained the opinion of the court; for it is in that respect only that Justice LAND, in his dissenting opinion, did not agree with the members of division A of the court. In order to emphasize that that is the only difference of *Page 234 opinion in this case, I shall quote from the dissenting opinion, which has been adopted as the majority opinion of the court, several excerpts which leave no doubt about its import.
On the second page of the opinion (103 So. 7471) it is said, of section 980 of the Revised Statutes, "Its sole object being to supply an alternative sentence when omitted from any criminal statute."
My answer to that is that the statute in this case does provide an alternative sentence of fine not exceeding $500 or imprisonment for a term not less than 10 nor more than 60 days.
On the fourth page of the opinion (103 So. 748, ante, p. 224) the question is asked:
"Can it be seriously contended that the Legislature, after providing for punishment, both by fine and imprisonment, should have intended to relieve the person convicted under the Hood Act of that part of the punishment covered by the fine?"
A convicted person is not relieved who gets the full limit of penalty — both fine and imprisonment. The idea seems to be that, when a judge, instead of imposing a fine or imprisonment, in the alternative, imposes both the fine and imprisonment to the full limit allowed by the statute, he ought to be allowed to impose additional punishment, in the way of imprisonment for a term not exceeding a year, in default of payment of the fine, or as a penalty for nonpayment of the fine. I do not subscribe to that.
On the same page of the opinion it is said:
"It is inconceivable to my mind that the Legislature should permit a fine as high as $500 to be imposed under the Hood Act, and, in addition to this fine, should provide imprisonment only for the light maximum limit of 60 days, and should have then intended to include in that petty term of incarceration the full punishment, both for the imprisonment actually inflicted, and also for the default in the payment of a fine, which is so large as to be out of all proportion to a jail sentence so insignificant *Page 235 as a penalty, even if inflicted as a punishment for the crime alone."
I would not consider 60 days in prison a "petty term of incarceration." I do not regard a fine of $500 as being "so large as to be out of all proportion to a jail sentence so insignificant as a penalty." I dare say 99 out of every 100 American citizens would rather pay a fine many times $500, if they had it, than to suffer the misery and disgrace of imprisonment in a jail for 60 days, subject to work on the public streets and roads. I doubt that any man in Louisiana who could possibly put up a fine of $500 has ever, as a matter of preference, suffered imprisonment in jail for 60 days.
On the fifth page of the opinion (103 So. 748, ante, p. 225) it is said:
"When an act makes no express provision for imprisonment in default of payment of a fine, such act cannot be said to be in conflict with section 980 of the Revised Statutes, nor can it be logically contended that such section does not apply, as said section applies only in case of the failure of an act to contain a provision for an alternative punishment, when a fine is not paid."
When a statute declares that the penalty for a violation of it shall be a fine of so many dollars or imprisonment for so many days or both the fine and imprisonment within the limits stated, at the discretion of the court, that in itself makes an "express provision for imprisonment in default of payment of the fine." I have never seen nor heard of a statute making any further provision for imprisonment in default of payment of the fine.
Of the four decisions cited in the dissenting opinion of Justice LAND, I find only two of them pertinent to the question in this case; and, even in those two cases, the question that is now presented was not up for decision. State v. Brannon, 34 La. Ann. 942, holds merely that section 980 of the Revised Statutes cannot be invoked to coerce the payment of the costs in a criminal case, when *Page 236 no fine is imposed. State v. Joseph, 137 La. 52, 68 So. 211, is authority for the proposition only that a fine is not a debt. In State v. Abraham, 139 La. 466, 71 So. 769, the only matter before the court was a motion to dismiss the appeal, for want of jurisdiction. And the motion was overruled. The sentence imposed, for selling intoxicating liquor without a license, was $305 and costs, "and, in default of paying said fine," imprisonment for two months. The penalty allowed by the statute was a fine not less than $100 nor more than $500, and, in default of payment of the fine and costs, imprisonment within the discretion of the court, or both fine and imprisonment, at the discretion of the court. The court took occasion to say that the sentence that was imposed was within the penalties prescribed by the statute that was violated, without regard to section 980 of the Revised Statutes. The excerpt which Justice LAND has taken from the opinion, with regard to the scriptural tinkling cymbal and sounding brass, is not pertinent to the question on which we disagree in this case. The fourth and last decision cited in Justice LAND's dissenting opinion, State v. McGuire, 152 La. 953, 94 So. 896, was written by him. I did not take part in the decision, for the reason that I was then in Rio de Janeiro, representing the state at the Centennial Celebration. McGuire was prosecuted for a second offense of having intoxicating liquor in his possession for beverage purposes, and, on conviction, was sentenced to pay a fine of $1,000 and be imprisoned for 4 months, and to work on the public works, and, in default of payment of the fine, to serve an additional term of 12 months in prison. He did not urge the point, or make the complaint, that the statute itself limited the penalty, for the second offense, to the fine of $1,000 and the imprisonment for 4 months, and that section 980 of the Revised Statutes was therefore not applicable. The complaint was — as copied in the published opinion — *Page 237 that the fine of $1,000 and imprisonment for 4 months was "excessive and violative of the Constitution"; and that "the alternative of 16 months' imprisonment and to work on the public roads or works of the parish" was "`cruel and unusual punishment' and forbidden by the state and federal Constitution." What was said by Justice LAND in that case, with regard to section 980 of the Revised Statutes, was not decisive of the question now before the court, because the question was not then at issue.
There is nothing peculiar in the provisions of the Hood Act that makes section 980 of the Revised Statutes not applicable to this case, any more than there is in any other statute that limits the term of imprisonment that may be imposed as a penalty for a violation of it.
I adhere to the original opinion handed down in this case.
ROGERS, J., concurs.
1 Ante, p. 223.