In re Ah You

McFarland, J., concurring.

I concur in the order discharging the petitioner, upon the ground that under a penal statute or ordinance imposing imprisonment not excéeding a certain term or fine, or both, a defendant cannot be kept in jail under the pretense of enforcing the fine for a term longer than the maximum term of imprisonment prescribed by the statute. This has always been my opinion. In this case the petitioner should have been discharged at the end of six months, which is the maximum term of imprisonment prescribed. Under the other view (if the ordinance be valid), the petitioner could have been fined one thousand dollars, and in default of payment sent to jail for one thousand days, which, under the circumstances, would have been still more cruel and absurd.