Waterman delivered the opinion of the Court.
It is urged by appellant that under the following provisions of the statute of this State, he was justified in causing the arrest of appellee, and that this action can not be maintained.
Page 357 of the 3d volume of Starr & Curtis: An act to define and punish frauds upon hotel, inn, boarding and eating-house keepers.”
“ Sec. 1. That any person who shall obtain food, lodging or other accommodation at any hotel, inn, boarding or eating-house, with intent to defraud the owner or keeper thereof, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding $100, or imprisonment in the county jail not exceeding thirty days.”
“ Sec. 2. Proof that lodging, food or other accommodation was obtained by false pretense, or by false or fictitious show or pretense of baggage, or that the party refused or neglected to pay for such food, lodging or other accommodation on demand, or that he or she absconded or left the premises without paying or offering to pay for such food, lodging, or other accommodation, but that he or she surreptitiously removed or attempted to remove his or her baggage, shall bQjprima, facie proof of the fraudulent intent mentioned in section 1 of this act, but this act shall not apply to regular boarders, nor when there has been an agreement for delay in payment.”
In construing this statute, it must be borne in mind that the constitution of this State does not permit imprisonment for a mere neglect to pay a debt, and that to construe these sections in such manner as to make them authority for such imprisonment, would be to render them obnoxious to the constitution.
Such a construction is not to be sought, but avoided. Mere proof that one refused or neglected to pay for accommodation on demand would be, only, that one refused or neglected to pay a debt, without showing either that it was fraudulently incurred, or that the neglect or refusal to pay was in any way fraudulent. We must not hastily conclude that the legislature intended to create a statute providing that one who owed a hotel bill might be imprisoned for non-payment thereof.
The declaration in a statute that mere neglect to pay a debt of a particular kind should be a misdemeanor and punishable by imprisonment, would not make confinement under such enactment anything else than imprisonment for debt and in violation of the constitution. It is evident that to constitute the prima facie proof described in section 2 of the act, there must be proof that he or she surreptitiously removed or attempted to remove his or her baggage, as well as of one or more of the facts mentioned in that part of the section preceding the word “ but.” There was no evidence that appellee “ surreptitiously removed ” his baggage from appellant’s hotel.
The fact that neither appellant nor any of his agents knew that he was going away, or taking his baggage away, does not, of itself, establish that the removal was surreptitious. He may have gone and taken his baggage in the most open and public manner, and yet neither appellant nor any of his agents seen the removal.
The:re was no evidence that appellee absconded at all, or left the premises without offering to pay for such food, lodging and other accommodations.
He left without offering to pay the amount appellant claimed was due; he did offer to pay, and did pay the sum he insisted was due. It does not appear that the difference of opinion as to what was due, was upon the part of appellee a mere fraudulent pretense; he seems to have honestly thought that he did not owe $27. Quite likely he was, as Justice Bray ton found, mistaken as to this; but the circumstances were such that it was a mistake, which one could honestly make.
The statute under consideration is a penal one and is to be strictly construed.
Appellant made written complaint that appellee, on the 6th day of May, 1893, did, with intent to cheat and defraud the affiant, Joshua Hutchinson, obtain from him food and lodging to the amount of $27.36. There was no evidence to sustain this complaint. Appellee did not obtain either food or lodging on the 6th day of May, to the amount of $27.36; he left the evening of that day and boarded with appellant no more. Hor was there any sufficient evidence that either the food he had on that day or at any previous time he obtained with intent to cheat or defraud the “ affiant, Joshua Hutchinson.”
It is gratifying to note that the jury did not, in this case, allow their reason and judgment to be run away with.
Appellant made a serious mistake; had he before causing the arrest of appellee consulted with a capable lawyer and told him all the facts, it is not likely that he would have instituted the criminal proceedings.
The verdict is, under the circumstances, for a fair and just amount. The judgment of the Circuit Court is affirmed.