dissenting. — Due respect for my conviction as to the proper interpretation of the statutes, under which the justice of the peace exercised in this case the power to impose hard labor for the costs, requires that I briefly state the reasons which constrain me to dissent from the opinion of the majority of the court.
In re Long, 87 Ala. 46, section 4504 of Code 1886 was construed to confer authority to impose hard labor for the payment of the costs on conviction for offenses punishable or punished by fine only. On the application for a re-hearing, the extent of the modification of the opinion rendered on the original hearing is expressed in the following language: “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 offense for 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.” In that case, there had been a sentence to hard labor under section 4503. I was constrained to dissent from the construction then placed upon the statute, but did not anticipate it would be carried to the extent now proposed. I then suggested, in my dissenting opinion, that the construction in that case would lead to double sentences to hard labor for the costs, should a case arise in which the defendant paid the fine, but failed to pay or confess judgment for the costs.
In this case, the defendants were fined only. They paid the fine, but failed to pay or confess judgment for the costs, as provided by section 4502. Without sentencing them to *136hard labor under section 4503, the justice imposed hard labor for the county for the term of eight months, to pay the costs, under section 4504. The question is not, whether a defendant is to be permitted to resort to a device of paying the fine, and thus entirely escape the payment of the costs. In Morgan v. State, 47 Ala. 34, it was held that, under section 4503, the accused could be sentenced to hard labor for the county as therein provided, on failure to pay or confess judgment for the fine and costs, or either of them, the term of the sentence being graduated by the amount of the fine. Under this construction, the justice could have sentenced the petitioners to hard labor on failure to pay or secure the payment of the costs under section 4503, though they may have paid the fine, and then, under the construction placed on section 4504 in In re Long, supra, could have imposed additional hard labor for the costs. This necessary consequence was one of the reasons on which I based my dissent in that case, and my conclusion that section 4504 was not intended to be applied in case of conviction for offenses punishable by fine only. It does not necessarily follow that the petitioners could have escaped the payment of the costs by paying the fine. The sole question is, whether the justice can impose hard labor for the costs under section 4504, when no judgment has been rendered that the defendants perform hard labor for the county ?
The highly penal character of section 4504 requires that it shall be construed with “reasonable strictness.” The rule of strict construction should not be so rigorously applied as to restrict the language employed in the statute to its literal meaning, to the exclusion of cases which would be comprehended within its scope and the purview of the words employed, when used in their ordinary popular sense and given their generally accepted meaning. But the rule requires that effect shall be given to all the words, unless obviously mere surplusage; and that no case be held as coming within the statute by construction, which does not come within the import of the language fairly interpreted. It has been said: “The purpose of the rule is to prevent acts from being brought within the scope of punishment, because courts may suppose they fall within the spirit of the law, though not within its terms.” — Com. v. Cooke, 50 Pa. St. 201. In no case is it permissible for the court to go beyond the plain meaning of the phraseology, in an effort to discover a legislative intention, not clearly implied from the language em*137ployed. — Endlich on Statutes, § 329, where the rule, and its limitations, are clearly defined.
The language of section 4504 is plain and unambiguous: “If, on conviction, judgment is rendered against the accused, that he perform hard labor for the county, and if the costs are not presently paid, or judgment confessed therefor, as provided by law, then the court may impose additional hard labor for the county, for such period, not to exceed eight months in cases of misdemeanor, and fifteen months in cases of felony, as may be sufficient to pay the costs, at a rate not less than thirty cents per diem.” By its express provision, a judgment against the accused that he perform hard labor for the county is preliminary and essential to the exercise of the power to impose hard labor for the costs. The imposition of hard labor for this purpose is contingent, and dependent on the concurrent happening of the rendition of judgment that the accused perform hard labor for the county, either as a penalty prescribed by statute on conviction for the particular ofiense, or as alternative punishment as provided by section 4503, and of the failure to presently pay or confess judgment for the costs. It is hard labor superadded to an antecedent sentence to the same kind of punishment— additional hard labor. Neither of the events required by the statute can be dispensed with, nor is either mere surplusage.
Nelson v. State, 46 Ala. 186, is cited as an authority sustaining the construction put upon the statute by the majority of the court. In that case the defendant was fined only. He paid the fine, but refused to pay the costs, and thereupon was sentenced to hard labor for the county, at the rate of forty cents per diem to pay the costs, the amount of which and time necessary to pay the samé were to be ascertained by the clerk. The ruling was, that if a party, who, on conviction, is punished by fine only, fails to pay or secure the payment of the fine and costs, he may be sentenced to hard labor for the county during the time prescribed by section 3760 of the Revised Code, which corresponds to section 4503 of Code 1886. It is said: “When both the fine and costs are not paid by a party found guilty on an indictment for a public offense, punishable by fine or imprisonment in the county jail, or to hard labor for the county, the foregoing section (3760) of the Revised Code prescribes the limit of the period during which he may be sentenced to hard labor for the county if the sentence is under this section.” This *138is the extent to which that case and Morgan v. State, supra, go. The construction in both is confined to section 3760, and neither makes any allusion to, or purports to construe, the section of the Revised Code corresponding to section 4504 of the present Code. It may be difficult to see on what ground it was held in Nelson’s ease that the Circuit Court did not err in refusing to discharge the defendant; but, to be consistent with the opinion, it can only be based on the ground, that the sentence not being for a definite period, the defendant should be held until he serves the number of days prescribed by section 3760 of the Revised Code. Neither of the cases is a judicial construction of section 4504, of which subsequent re-enactments should be considered a legislative adoption.
The words of section 4504, being plain and unambiguous, leave no room for construction or interpretation. Ambiguity, which does not reasonably arise from the language employed, should not be attributed in search of a case which does not come within the scope and fair meaning of the phraseology. When the words are plain and unambiguous, the legislature must be intended to mean what they have clearly expressed. Carlisle v. Godwin, 68 Ala. 137. To construe the section as authorizing the imposition of hard labor for the costs on the assessment of a fine only, and a failure to pay or confess judgment for the costs, necessarily eliminates, or makes of no effect, the material and controlling words, uij, on conviction, judgment is rendered against the accused, that he perform hard labor for the county;” and to construe it as if to read, “if, on conviction, the costs are not presently paid, or judgment confessed therefor, as provided by law, then” hard labor for the county may be imposed for the costs, for the time, and at the rate spebified. It may be that the legislative policy is to enforce payment of the costs by the imposition of hard labor, but they have seen proper to restrict it to cases in which the accused is sentenced to perform hard labor for the county. I submit with due respect, that the construction now placed on section 4504, by which a statute highly penal in its character is extended to cases which do not come within the scope and fair meaning of the language employed, is unauthorized by any established canon of construction, or the adjudged cases.