Concurring. — I concur in the conclusion reached by the majority of this court as expressed in the opinion of Justice Ailshie. Under the provisions of see. 7232, Rev. Codes, whenever any fine is imposed for a misdemeanor, whether such be by statute or at common law, the party upon whom the fine is imposed shall be committed to the county jail until the fine is paid, and shall be imprisoned at the rate of one day for each two dollars until such fine is paid. Under the provisions of this section, it would seem to be mandatory upon the court to commit the prisoner until the fine is paid at the rate of two dollars per day, but under the provisions of sec. 7994, it would seem to be discretionary with the court as to whether or not the defendant be committed in default of the payment of the fine and costs, for in that section it is provided, “A judgment that the defendant pay a.fine, or pay costs, or pay both fine and costs, may also direct that defendant be imprisoned until the fine, or costs, or both fine and costs, have been satisfied.”
This latter section seems to contemplate that a judgment for fine or costs, or both, is to be entered as a civil judgment, and that it is made discretionary with the court as to whether the defendant shall be committed until such fine or costs, or both, are paid. Whether under these two sections of the statute the trial court has the power to impose as a penalty imprisonment and a fine, and imprisonment for nonpayment of such fine and costs, may be questionable but is not involved in this case.
Subsequent to the enactment of these two sections, secs. 8324 and 8327 of the Rev. Codes were incorporated in the Rev. Stat., and to a certain extent modify and limit the jurisdiction of the district court in imposing punishment in appeals from the probate and justice’s court. Sec. 8324 provides for an undertaking, to the effect that the appellant will pay any judgment of fine and costs that may be awarded against him on the appeal; and see. 8327 requires and commands that if the defendant be convicted upon such appeal, then the trial court must render judgment against the defendant and his sureties for the costs in both courts and for any *170fine imposed by the district court. The provisions of these two sections make the liability of the defendant, for the fine and costs upon appeal from a probate or justice’s court, a civil liability; and the only method-to collect the same is by the entry of judgment and the issuing of an execution thereon. The court is denied the right of satisfying such judgment by the imprisonment of the defendant.
This statute substitutes a civil judgment as a method of collecting the fine imposed and the costs, instead of the imprisonment of the defendant, for nonpayment of such fine and costs at the rate of two dollars per day. In other words, under this statute the district court upon conviction in an appeal ease from the probate or justice’s court, has no jurisdiction or power to imprison the defendant for the fine or costs. The only method, by which such fine and costs can be collected, is through civil process. This statute, however, does not take away from the court the power to impose imprisonment as an independent sentence and not in default of the payment of the fine and costs; and in this case the district court, having imposed imprisonment for nonpayment of a fine upon an appeal case from a police court, exceeded its jurisdiction and rendered a judgment wholly unauthorized by the statute.
There is another matter in connection with the judgment rendered by the district court in this ease, which I think deserves attention. An examination of the judgment discloses that the court adjudges “that the defendant be punished and imprisoned in the county jail of the county of Ada, state of Idaho, for a term of fifty days or pay a fine of one hundred dollars or two dollars for each day of the imprisonment not served.” While the form of judgment or its sufficiency is not questioned in this court, yet I think the matter is of such importance that the trial court’s attention should be called to the fact that the punishment imposed is imprisonment rather than a fine. If it were the intention to adjudge a fine against the defendant, and in default of the payment of which he be imprisoned at the rate of one- day for each two dollars of such fine or costs, or .both, then the judg*171ment should have so stated, as the imprisonment is only upon condition that the fine be not paid. It would have been better had the judgment followed the provisions of the statute. (See. 7994, Rev. Codes.),