[On application for rehearing].
McCLELLAN, J.The Penal Code prepared by Stone and Shepherd was adopted by an act of February 23, 1866. Acts 1865-6, pp. 121-124.
Section 213 of that Code was carried without amendment, in any particular, into all subsequent Codes, and is found at section 3760 Revised Code of 1867; at 4455, Code of 1876; and at section 4503, Code of 1886.
Section 511 of the Penal Code of 1866 read as follows: “If, on conviction before the County, Circuit or City Court, judgment is rendered against the accused, that he perform hard labor for the county, and if the costs are not presently paid, then the court may impose additional hard labor for the county, for a term sufficient to cover the costs to the county, for State witnesses and judges’ fees, allowing not exceeding forty cents pier diem for the additional hard labor imposed.”
This section was amended by the act of February 10, 1867, by striking out the words, “the costs to the county for State witnesses and judges’ fees,” and inserting in lieu thereof the words “all costs and officers’ fees.” — Acts 1866-7, pp. 513-514.
As thus amended, this law became section 4061 of the Revised Code of 1867, and section 4731 of the Code of 1876.
This section was amended by the act of February 26, 1881, so as to read as follows: “If, on conviction before the Circuit, City or County Court, judgment is rendered against the accused, that he perform hard labor for the county, and *53if the costs axe not presently paid, or judgment confessed therefor, as provided for in section 4454 of the Code, then the court may impose additional hard labor for the county, for such period, not to exceed eight months in cases of misdemeanors, and fifteen months in eases of felony, as may be sufficient to pay the costs, at a rate not less than thirty cents per diem for each day. Any person sentenced to hard labor to pay costs, must be discharged from such sentence on the payment of such costs, or any balance thereof, by the hire of such convict or otherwise; and the certificate of the judge or clerk of the court in which such conviction was had, that the costs, or the residue thereof, after deducting the amount realized from the hire of the convict, have been paid, or that the hire or labor of the convict, as the case may be, amounts to a sum sufficient to pay the costs, shall be sufficient evidence to authorize such discharge.” — Acts 1880-81, pp. 37 — 38.
As thus amended, with the additional change in phraseology effected by the substitution of the words, “as provided by laio,” for the words “as provided for in section 4454 of the Code,” this law became section 4504 of the Code of 1886.
The law thus referred to as section 4454, Code of 1876, was section 3759 of the Revised Code of 1867, and section 212 of the Penal Code of 1866; and has been, at least since the year last named, and is now, as embodied, without modification, in the Code of 1886 at section 4502, the law, and the only law, which provides for the confession of judgment by convicts. By its terms, which are, “ "When a fine is assessed, the court may allow the defendant to confess judgment, with good and sufficient sureties, for the fine and costs,” and from the nature of things, since only a money judgment could be confessed and secured, it applies only to cases in which fines are assessed, and, it would seem, necessarily to all cases in which a fine is assessed, whether that be the sole punishment or not.
An analysis of the amendment of February 26, 1881, and of the codification of the statute as amended, will demonstrate that, so far as the cases in which hard labor for costs may be imposed are concerned, section 4504 of the Code of 1886 is in identically the same language as section 511 of the Penal Code of 1866, except that the words, “or judgment confessed therefor as provided by law,’” are inserted in the section as embodied in the present Code. To my *54mind, this shows not only a legislative construction, evidenced both by the act of 1881 and the adoption of the Code of 1886, that section 4504, as to hard labor for costs, applied to cases provided for, as to the imposition of hard labor for the fine, by section 4503, but also an affirmative expression of the legislative will that such should thereafter be the effect of section 4504, whether it had been so theretofore or not.
But, aside from this consideration, enough has been said to show that there has been no change in the statute now constituting section 4504 of the Code, which tends, in any degree, to the exclusion from its operation of any case originally embraced in its terms. In 1876, in a case in which upon conviction the only penalty provided by law, and the only penalty in fact imposed, was the assessment of a fine, this court held that it was competent for the court below, the fine and costs not being presently paid, to sentence the defendant to hard labor for the payment of the fine under section 3760 of the Revised Code (§ 4455, Code of 1870; and § 4503, Code of 1886), and to hard labor for the payment of costs under section 4061 of the Revised Code (§4731, Code of 1876; and § 4504, Code of 1886). — Williams v. State, 55 Ala. 166.
These statutes have each been re-enacted several times since this judicial construction was engrafted upon them, and it must now be considered to have been adopted by the legislature as a part of the laws themselves.—O'Byrnes v. State, 51 Ala. 25; Ex parte Matthews, 52 Ala. 51; E. T., V. & G. R. R. Co. v. Bayliss, 74 Ala. 150.
This construction receives support from section 4501 of the present Code, which has come down, with the other sections under consideration, from the Penal Code of 1866. It is there provided that a prosecutor, who has been taxed with costs, may be sentenced to hard labor if he fail to pay it. It would be anomalous to authorize this to be done, and at the same time to withhold a like power with respect to a convicted defendant.
Upon these several considerations, we feel constrained, in response to the application for a rehearing, to recede from the position heretofore taken, as to the power of courts to impose hard labor for costs on conviction for offenses punishable, or punished, by fine only; and to so modify our former opinion as to hold, that in all cases in which the defendant is sentenced to hard labor as a punishment for the *55offense of which he has been convicted, either in default of the payment of, or confession of judgment for the fine assessed, or in execution of the original judgment, the court may impose additional hard labor, as provided by section 4504 of the Code, for the payment of costs.