When the legislature said that violations of the ordinances might be punished by “fine or imprisonment, or both,” it meant to provide for precisely the same kind of punishment it has provided for in a multitude of cases in the Penal Code, where the court is authorized to impose a fine or imprisonment, or both. We have held here, in several cases, lately, that the power to impose a fine or imprisonment, or both, does not include the power to impose a fixed term of imprisonment and a fine, and also imprison ment for non-payment of the fine. The judgment may be for a fixed term of imprisonment, and a fine to be enforced by execution, but it cannot be for a fixed term, a fine, and imprisonment in satisfaction of the fine. (Ex parte Rosenheim, 83 Cal. 388; Lowrey v. Hogue, 85 Cal. 600.) It seems to me that there is an obvious inconsistency between those decisions and the decision in this case.
It is said that the trustees are clothed with general authority to enforce all municipal regulation, and that imprisonment is a common and not an unreasonable mode of enforcing payment of a fine. The same thing could have been said in the Rosenheim and other cases; but the question there considered — as it is here—is, not as to the reasonableness of the method of enforcing payment or satisfaction of the fine, but the power of the court to impose the additional penalty.
*393I am unable to appreciate the force of the suggestion that the whole term of imprisonment being less than three months, — the maximum term of imprisonment allowed, by the charter, — the petitioner cannot complain. The legislature has provided that the penalty for battery shall be a fine not exceeding one thousand dollars, or imprisonment in the county jail not exceeding six months, or both. Lowrey was convicted of battery, and was sentenced to serve a term of thirty days and pay a fine of two hundred dollars, with the usual alternative of imprisonment until the fine should be paid at the rate of one day for every dollar. thereof. If he had remained in jail under the judgment, according to its terms, until the fine was satisfied, the imprisonment would not have exceeded the maximum term which the justice might have imposed; and yet we held that the alternative clause was void. (Lowrey v. Hogue, 85 Cal. 600.) I think the same thing should be done here.