I dissent. In the case of Ex parte Bernert, 62 Cal. 524, where the judgment of the court was that “ the defendant pay a fine of twenty dollars, and the minimum fine recognized by law for the offense charged was one hundred dollars,” this court said: “ The judgment of the police court in the case before us is certainly void, because it is not one which includes any judgment which that court has jurisdiction to render in such a case.”
And the judgment in this case under which the petitioner is held in custody is certainly void, because it is one which the court had no authority in law to render.
The judgment consists of two distinct portions: 1. That the defendant pay a fine; 2. That in default in the payment of the fine he be imprisoned at the rate of one day for each two dollars of the fine. These portions of the judgment are of equal gravity and equally require sound law upon which to stand.
I thought this court went too far in its construction of section 1446 of the Penal Code in Ex parte Erdmann, ante, p. 579, and now the construction placed upon this section in the foregoing opinion would render it unrecognizable by the legislature that created it, and cannot be supported by any well-settled principles of statutory construction.
Whatever power the recorder had to imprison for the non-payment of the fine, he got by virtue of this section of the Penal Code; and his power is measured by the section. The section is not mandatory in requiring him to render a judgment of imprisonment in case of default in the payment of the fine; that is discretionary with *631the recorder; but when he exercises that discretion, as in this case, it is mandatory that he exercise it in the terms and in the manner fixed by the section.
If petitioner can be imprisoned at the rate of two dollars for each day of imprisonment, he can be imprisoned at the rate of one hundred dollars for each day of imprisonment, and the statute thus practically annulled.
The section provides that the judgment shall be in the proportion of one day’s imprisonment for every dollar of the fine. If the recorder has the discretion to disturb that proportion by making the judgment one day for each two dollars of the fine, we see no reason why his discretion does not equally extend to the right of making the judgment two days for each one dollar of the fine.
This court cannot by a decision, or by a line of decisions, repeal a statute; and the result of the construction given this section, in effect, is to repeal it and create a new section in lieu thereof, providing that a judgment that a defendant pay a fine may also direct that he be imprisoned until the fine be satisfied in the proportion of one day’s imprisonment for as many dollars of the fine as the recorder, in his discretion, may deem proper.
Ex parte Baldwin, 60 Cal. 435, supports the foregoing views.
It would seem that the judgment is not simply erroneous, but void. Conceding the court had jurisdiction of the offense charged, and the defendant, it had no jurisdiction to render such a judgment; it was a judgment not authorized by law, and therefore void.