It seems to have been definitely settled by the adjudications of this Court:
1. That the act of 1879 (The Code, sec. 35) made the begetting of a bastard child a criminal offense, cognizable for twelve months after it is committed exclusively before a justice of the peace, and punishable by fine of ten dollars. Myers v. Stafford, 114 N.C. 234; S. v. Burton, 113 N.C. 655;S. v. Wynne, 116 N.C. 981; S. v. Ostwalt, 118 N.C. 1208.
2. That the same act confers upon the court before whom the offender may be tried the incidental authority to enforce the police regulation as provided by law. S. v. Parsons, 115 N.C. 730; S. v. Wynne, 116 N.C. 981, at p. 983.
3. That a judgment for fine and costs, or for an allowance for the mother of the bastard, is not a debt arising out of contract, to which the protection afforded by the inhibition of the Constitution, Art. I, sec. 16, extended, but is rendered as a means of enforcing a legal obligation and duty imposed by the Legislature under the police power of the State *Page 499 upon one who is responsible for bringing into existence a bastard child that may become a burden to society. S. v. Cannady, 78 N.C. 539;S. v. Parsons, supra; S. v. Manuel, 20 N.C. 144. (800)
It is conceded that in the exercise of the criminal jurisdiction of a justice of the peace, with which the law clothes the mayor, by virtue of his office, he had no authority to sentence the defendant to imprisonment for twelve months as a punishment, because he could not under the Constitution, Art. IV, sec. 27, take cognizance of any offense the punishment whereof could exceed a fine of $50 or imprisonment for thirty days, and for the further reason that the Legislature had not attempted to exceed its authority but had limited the punishment for bastardy to a fine of $10. But the act of 1879 (The Code, sec. 35) provides not only that upon conviction or submission the defendant shall be fined not exceeding the sum of $10, but that "the court shall make an allowance to the woman not exceeding the sum of $50, to be paid in such installments as the judge or justice shall see fit, and he shall give bond to indemnify the county as provided in section 32, and in default of such payment he shall be committed to prison." In section 38 of The Code, under the authority of which the judgment of the court was rendered, it is provided that "in all cases arising under this chapter (5) when the putative father shall be charged with costs or the payment of money for the supportof a bastard child, and such father shall by law be subject to be committed to prison in default of paying the same, it shall be competent for the court to sentence such putative father to the house of correction for such time, not exceeding twelve months, as the court may deem proper," with a proviso that instead of being committed to prison the putative father may at his discretion bind himself as an apprentice "for such time and at such price as the court may direct," "instead of being committed to prison or to the house of correction." In S. v. Yandle, post, 874, it was held that in order to provide for the payment of a (801) judgment for fine and costs rightfully pronounced against one convicted of crime, the defendant, as incident to such judgment, may be required by order of the board of commissioners of the county wherein he is convicted to work on the public streets, public highways, or public works. Code, sec. 2448; Myers v. Stafford, 114 N.C. 234. But it is insisted that this is not a judgment for fine and costs alone but also for an allowance, and that a judgment for the imprisonment of the defendant for twelve months on default of paying the fine, costs, and allowance, under section 38 of The Code, is in violation of section 27, Article IV of the Constitution, which fixes the limit to the punishment that a justice of the peace may impose. The question to be decided, therefore, is whether it is competent for the Legislature to authorize a justice of the peace, instead of a county commissioner, to order one convicted of *Page 500 bastardy and who is unable to pay the fine, cost, and allowance, to work upon the public roads, not as a punishment for the offense nor as an incarceration for a debt contracted by him, but in the enforcement of a duty or obligation he owes to society to protect the State or the county, one of its governmental subdivisions, against the probable consequences of his own conduct. S. v. Yandle, supra. When the defendant committed the offense of begetting the bastard child he acted in contemplation of the fact that the law authorized a justice of the peace to impose, as a punishment, a fine of not exceeding ten dollars, as well as to fix the allowance for the mother so that it should not exceed fifty dollars. Had he paid the allowance, he could, nevertheless, on failure to pay the judgment for fine and costs, have been required as in other criminal cases to work upon the public highways for a time prescribed by the (802) commissioners (presumably with a view to the payment of the amount due). If the Legislature was authorized, as an incident to the judgment and in the exercise of its general police power, to provide for the protection of the public by compelling the defendant to work out the costs and fine, why was it not competent to clothe the justice of the peace or the judge imposing the sentence, where it should appear that the person convicted would not pay fine, costs, and allowance for the support of a bastard, with power to fix the time of confinement at hard labor with a view to discharging the amount, which he is under obligation to pay for the protection of the public? The alternative offered the defendant, who is unable to pay the money, of being apprenticed "for such time and at such price as the court may direct," is plainly indicative of the legislative intent that whether the court should be called upon to fix a time for the work on a highway or to determine the limit of the apprenticeship, the period should be prescribed upon the idea that it ought to be long enough for the criminal to earn by his labor a sum sufficient to pay the amount rightfully claimed by the State, in order to protect the public against the probable consequences of his infringement of the law.
While it seems to be settled that it is competent for the Legislature, in the exercise of its general police power, to protect the public by permitting either county commissioners or justices of the peace to fix such limit of confinement at hard labor as will enable a defendant to pay a fine due to the State or cost to its officers, or an allowance made to support a child that, without it, might become a charge to the public, it must be admitted that imprisonment for a term longer than was necessary to pay a fine, costs, and allowance by laboring at the wages per month mentioned in the order ($10) savors rather of the nature of punishment (803) than a purpose to protect the public against costs. It may be that a term of hard labor could lawfully exceed the precise *Page 501 number of days or months necessary at a known compensation to discharge what is due to the State and the mother, because some allowance might be made for contingencies, such as loss of time. But it seems in this case that the time is far beyond the period requisite to earn the fine of $10, the allowance of $50, and the costs. Conceding, therefore, that imprisonment under the police regulation for the purpose of protecting the public is not within the constitutional inhibition against imprisonment for debt, nor a violation of section 27, Article IV of the Organic Law, it is nevertheless clear that not only must a statute, purporting to have been passed under the police power, upon its face grant the authority to imprison for police purposes (as section 38 of The Code does), but that the officer, who is the donee of the power, must keep within the provisions of the law and avoid the error of punishing the defendant beyond what is reasonably necessary in order to compel the discharge of his duty to the public.
There was error in the ruling of the court below that the judgment of the justice of the peace was in violation of section 27, Article IV of the Constitution, except in so far as the term of hard labor was fixed so as grossly to exceed the period necessary for earning the sum due as costs, fine, and allowance. The case should have been remanded to the mayor, who tried it originally, to modify his judgment so as to correct this error. The declaration in the judgment of the mayor that the defendant was in contempt of court was merely surplusage, since it was followed by the recital that the court was acting by virtue of the authority vested in it by section 38 of The Code, which has been already quoted.
If the imprisonment would have been illegal, therefore, had it been imposed as a punishment either for contempt or for the (804) criminal offense of begetting a bastard child, it was in fact unauthorized by law, when the court expressly declared that its action was taken in pursuance of the provisions of section 38 of The Code, and was careful not to transcend the limit of the power therein conferred upon it.
For the reasons given the judgment ought to be so modified as to remand the case to the mayor, with instructions to proceed to judgment and to alter the judgment already entered by him, so as to fix the limit of imprisonment with a view not to the punishment of the defendant, but to securing the payment of the costs, fine and allowance. Judgment modified and affirmed.
AFFIRMED.
Cited: McDonald v. Morrow, ante, 675; S. v. Ballard, 122 N.C. 1026;Abbott v. Beddingfield, 125 N.C. 284; S. v. White, ib., 679, 682; S. v.Morgan, 141 N.C. 732.
Overruled: S. v. Liles, 134 N.C. 735. *Page 502