Ex parte State

CLOPTON, J., dissenting.

My convictions constrain me to dissent from the conclusion to recede from the construction of the statutes announced in the opinion delivered in the first instance. The reasons for the construction then given are fully stated therein, and I do not propose to repeat or elaborate them. In Williams v. State, 55 Ala. 166, the rule, that the different sections of a Code, relating to the same subject, should be construed in reference to each other, and as the several sections of a single statute, was held inapplicable, on the ground stated in the opinion then rendered as follows: “It is well known that many acts were passed after the adoption of the original Code of 1852, that were. *56supplementary to, as well as many that were amendatory of its provisions. Of the former sort was the act of the 16th of February, 1867, which is incorporated as section 4061 in the Revised Code.” On this ground section 4061, which corresponds to section 4504 of the Code, 1886, was construed to be supplementary to section 3760 of the Revised Code, which corresponds to section 4503 of the Code of 1886. Now, the fact is, the originals of sections 4503 and 4504 were first and contemporaneously introduced into the Penal Code of 1866, and the act of February 16, 1867, was not an original act, but merely amendatory in respect to the particular costs for which additional hard labor might be imposed. The mistake in the legislative history of the sections, on which the construction in Williams v. State was based, greatly impairs, if it does not destroy its weight as authority.

As to the presumption that the legislature had adopted that judicial construction of the sections, arising from their re-enactment, it may be said, that, except the amending act of February 26, 1881, there has been but one re-enactment since that decision was made — the adoption of the Code of 1886. In the previous Codes, the sections were arranged in different chapters, under different titles, and in relation to different subjects; whereas, in the Code of 1886, they are collocated in the same chapter, under the same title, and in reference to the same subject. This collocation brings them within the operation of the rule, that they should be construed as several sections of a single act. — Endlich on Interp. Stat. § 40. The mode and manner of the re-enactment overcomes the presumption, which ought not to be rigidly indulged as to penal statutes.

I am unable to appreciate the force of the argument based on the amending act of February 26, 1881. The purpose of that amendment was to give the accused the right to confess judgment for the costs, and escape the additional hard labor. This is sought to be accomplished by mere reference to section 4454 of Code of 1876, not as giving the right to confess judgment, but as requiring good and sufficient sureties. The amendment does not provide that judgment may be confessed for fines, but only for costs, in cases where judgment is rendered that the accused perform hard labor for the county. A confession of judgment when a fine is assessed as the punishment, was already provided for, and the amendatory act, was not intended to have any reference to such cases, but to a distinct class of cases.

*57If the legislature originally intended, when a fine only is the assessed punishment, that hard labor could be imposed for the costs under section 4504, why was it, that the term of days, for which the accused could be sentenced to hard labor, in the event he failed to pay or confess judgment for both the fine and costs, was specified in section 4503? This excludes any inference of an intention, that the accused could be sentenced to hard labor, for either fine or costs, for a longer time than the specified number of days, as a part of the alternative punishment provided by section 4503. The construction placed upon the statutes by a majority of the court leads to this result. The accused is convicted, and a fine only is assessed. He pays the fine, but fails to pay or confess judgment for the costs. It is admitted that additional hard labor for the costs can not be imposed, unless judgment be rendered that he perform hard labor for the county. Now; though the fine has been paid, the court may sentence him to hard labor for the term specified in section 4503, as preliminary and in order to impose additional hard labor for the costs under section 4504 — two distinct sentences to hard labor, one under each section, because of the failure to pay or confess judgment for the costs. A construction, that could lead to such result, should not be placed on the statutes.

I can not perceive how the future administration of justice in criminal trials can be possibly disturbed by overruling Williams v. State. And if it has been the practice of the nisiprius courts to impose punishment unauthorized by law, such practice can not be stopped too soon.