The petitioner was convicted in the recorder’s court of the city of Pomona, upon a charge of violating a city ordinance, and sentenced to pay a fine of $150, and in default of such payment to be imprisoned in the city jail in the proportion of one day’s imprisonment for each two dollars of the unpaid portion of said fine.
The punishment prescribed by the city ordinance under which the petitioner was convicted is a fine not exceeding three hundred dollars, or imprisonment not exceeding three months, or both such fine and imprisonment. And it is claimed that a judgment imposing a fine only cannot be enforced by imprisonment, because the ordinance does not authorize imprisonment for that purpose.
But it is not necessary that such authority should be found in the ordinance if section 1446 of the Penal Code applies to cases tried in the recorders’ courts of cities of the fifth class.
By that section it is provided that “ a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, in proportion of one day’s imprisonment for every dollar of the fine.”
It is contended, however, that since this provision *626only applies to proceedings in justices’ and police courts, it confers no authority upon a recorder’s court.
But a recorder’s court is none the less a police court because it happens to have been called by another name. The character of a court is determined, not by its name, but by the nature of its jurisdiction and functions, in which respect the recorders’ courts of cities organized under the general municipal corporations act cannot be distinguished from other police courts.
Another ground upon which petitioner insists that his imprisonment is unlawful is, that if it be conceded that the recorder’s court of Pomona is a police court, and therefore authorized by section 1446 of the Penal Code to enforce payment of a fine by the alternative of imprisonment, this judgment is void as to the imprisonment which is prescribed, because, by the statute, the imprisonment must be at the rate of one day for every dollar of the fine, while this judgment only requires him to be imprisoned at the rate of one day for every two dollars of the fine.
In support of this contention he cites the case of Ex parte Bernert, 62 Cal. 524, in which it was held that a sentence to pay a fine of twenty dollars, and in default of payment to be imprisoned ten days, was void, because the law in question prescribed a fine of not less than one hundred dollars, and allowed imprisonment only as an alternative for non-payment of the fine. The reasoning of the court was, that since there could be no imprisonment except as an alternative of non-payment of the fine, and since the fine was less than the minimum prescribed by the statute, the imprisonment was necessarily unlawful.
Upon the same reasoning it would seem to follow that if this petitioner has been allowed to discharge his fine by a shorter term of imprisonment than the law warrants, he cannot be imprisoned at all.
But we think there is sufficient difference between the *627terms of the law applicable to this case and those of the statute construed in Ex parte Bernert, 62 Cal. 524, to enable us to escape a consequence which, upon commonsense views, appears so absurd.
Section 1446 of the Penal Code does not imperatively require that the direction for imprisonment in case of non-payment of a fine shall be at the rate or in the proportion of one day for one dollar. It is, in terms, permissive,—the discretion of the magistrate is absolute whether or not to impose any imprisonment whatever,— and it can lead to no possible harm to hold that the law merely prescribes a maximum rate of imprisonment, leaving the magistrate full discretion to fix any rate within that maximum that seems to be just. It is certainly true, as argued by petitioner, that if this discretion exists, the magistrate may allow a fine to be discharged by imprisonment at the rate of ten dollars a day, or a hundred dollars a day. But this does not seem to us to amount to a reductio ad absurdum.
If the legislature deemed it wise to allow a police judge, in his discretion, to wholly omit the alternative of imprisonment, there seems to be no reason to assume an unwillingness to grant him the smaller discretionary power to vary the rate at which the fine may be discharged by that means.
That such power has been conferred on the superior court by the express terms of section 1205 of the Penal Code is conceded, and this proves that the mere fact that it is a power capable of abuse by arbitrary or capricious exercise is no proof of its non-existence.
It is no doubt true that the legislature might be supposed to have been willing to confide more to the discretion of the superior court than to inferior judicial officers, and it may be argued that the difference in the terms of the two sections referred to is proof of such disposition.
But it is difficult to reconcile this assumption with the *628fact above stated, that the power conferred upon police judges to omit the alternative of imprisonment altogether is really more extensive and absolute than the power supposed to have been withheld. Certainly, it is a power quite as capable of being abused to the detriment of the public, and as a means of unjust discrimination in favor of individuals. The difference in the terms of two sections of the code would, it is true, ordinarily require a difference of construction; but the subject of these provisions is such as to demand a construction which will give them a harmonious rather than a discordant operation.
If there is no reason to suppose the legislature less willing to confer a discretion upon police courts than upon the superior court as to the rate of imprisonment required to satisfy a fine, there is still less reason for supposing an intention to subject petty offenders to a harsher and more burdensome rule than is applied to more serious offenders. If one who has justly incurred a fine of five thousand dollars may, in the discretion of a superior judge, be allowed to satisfy such fine by undergoing imprisonment for fifty days, or even less, why • should one who has justly incurred a penalty of only one hundred"dollars be compelled, if imprisoned at all, to stay in jail twice as long? We find it less difficult to construe the two sections of the code in the same sense than to ascribe to the legislature an intention not merely to permit, but in a measure to compel, such gross inconsistency.
But, aside from all this, it has lately been decided here that there can be no imprisonment in satisfaction of a fine for a term longer than the maximum term of imprisonment prescribed as a penalty, or part of the penalty, of the offense. (Ex parte Erdmann, ante, p. 579.)
This being so, petitioner could not have been imprisoned in satisfaction of his fine of $150 longer than ninety days, and therefore a sentence in the alternative to imprisonment at the rate of one day for one dollar *629would have been void as to sixty days. Can it be said that the recorder’s court was compelled to pronounce a judgment that would have been void? Surely not. If the case referred to was correctly decided, section 1446 cannot mean what petitioner contends it means. It must be subject to a construction which will admit in many cases, and which in his case demanded, a sentence of imprisonment for the satisfaction of the fine at a rate greater than one dollar a day.
There is no excess of jurisdiction.
The prisoner is remanded, and writ discharged.
Paterson, J., and McFarland, J., concurred.