(concurring in part and dissenting in part):
When the majority earlier accepted the submission of the case for final decision as to costs, and concluded that commitment for nonpayment of costs under the Maryland statute violated the equal protection clause and granted injunctive relief, I concurred in the result as to this aspect of the case; but I expressed my view that the decision should be placed upon the ground that as to costs the Maryland statute violated the due process clause. I still adhere to that view for the reasons I then set forth in my separate opinion.
At the same time I dissented from the majority’s failure then to hold that commitment for nonpayment of fines under the Maryland statute was a violation of due process. To the extent that the majority now orders the release of three plaintiffs and the intervenor, I concur in their judgment. But I would enjoin future enforcement of the statutes and order the release of all defendants committed to the Baltimore City jail for nonpayment of fines, that is, all within the class on whose behalf suit was brought, on the ground that the statutes under which they were committed offend the due process clause. I continue to rest this conclusion on the views I have previously expressed, but I append a few words to point up the errors into which the majority falls:
In the abstract, I do not necessarily disagree with the majority’s premise that a statute may be invalid on its face, invalid because of the manner in which it is applied generally, or invalid because of the manner in which it is applied in a particular case. I think that the Maryland statutes providing commitment for nonpayment of fines are invalid on their face. This issue the majority ignores; although, departing from its previous views, it now grudgingly concedes that the ratio of fine to days of imprisonment “seems to set a very low number of dollars for each day to be served” and that it is now “satisfied” that an indigent defendant must be “given the opportunity to tell the judge that he is financially unable to pay the fine before he is committed for nonpayment, so that the judge may take that factor into account,” if the statutes are to be constitutionally applied. To justify its failure to grant immediate, broader relief — and, indeed, in laying down the conditions for future constitutional application of the statutes —the majority, in effect, says that a statute invalid on its face may be valid *166because of the manner in which it is applied in particular cases, or because of the manner in which it is applied generally. I disagree that the facial invalidity of the statutes may be thus cured. Moreover, the majority’s curative process necessarily requires it to rewrite the statutes — a peculiarly legislative function and one, incidentally, which the Maryland General Assembly refused to undertake when it failed to enact Senate Bill No. 730 at its 1969 session — in order to attempt to remove the constitutional infirmities. The majority does not simply interpret narrowly existing language of the statutes — an approved judicial approach to preserve constitutionality; it implants additional requirements which the statutes have never prescribed and their language will not support, thus flagrantly invading the legislative domain.
Presumably, if the Maryland courts, generally or in particular cases, do not comply strictly with the majority’s admonitions as to how the statutes should be administered, the majority will grant injunctive or habeas corpus relief. But the point is that the statute does not require the majority’s concept of constitutional administration and, notwithstanding the deference to which the majority’s views are entitled, indigent defendants may still be deprived of liberty, without a judicial determination of the appropriateness of the duration of loss of liberty with which they are faced under statutes which equate dollars to days on a totally irrational basis, and will be required to seek the intervention of a federal court to obtain relief.
The majority cites no authority, and I can find none, to sustain the proposition that the facially invalid Maryland statutes may be saved by particular or general future benevolent administration, the necessity for which the Court writes into the statutes. Impressive authority is to the contrary. Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), held invalid § 6 of the Subversive Activities Control Act for overreaching, under which passports were denied to two top-ranking Communist Party leaders, as against the government’s argument that even if invalid generally, it was valid as applied to these individuals. This argument the Court rejected because “[t]he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.” 378 U.S. at 515, 84 S.Ct. at 1669. It also quoted approvingly from Scales v. United States, 367 U.S. 203, 211, 81 S.Ct 1469, 6 L.Ed. 2d 782 (1961), that “[while the] Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute” or judicially rewriting it. (Emphasis supplied.) 367 U.S. at 211, 81 S.Ct. at 1477.
N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), concerned a Virginia statute prohibiting the giving of advice to another that his legal rights had been infringed and referring him to a particular attorney for assistance. The statute was held unconstitutionally broad, and, notwithstanding that Virginia’s highest court had construed the statute in the instant case so as to give it a precise meaning, the Supreme Court pointed out that it would not hesitate “to take into account possible applications of the statute in other factual contexts besides that at bar.” 371 U.S. at 432, 83 S.Ct. at 337. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L. Ed.2d 205 (1959), a case involving an obscenity ordinance, expressed the same concept when the Court said: “the usual doctrines as to the separability of constitutional and unconstitutional applications of statutes may not apply where their effect is to leave standing a statute patently capable of many unconstitutional applications, threatening those who validly exercise their rights of free expression with the expense and inconvenience of criminal prosecution.” 361 U.S. at 151, 80 S.Ct. at 217.
So, too, in Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. *1671093 (1940), where the Court held invalid an anti-picketing statute, it was specific in stating that “[t]he section [of the Code] in question must be judged upon it face” (310 U.S. at 96, 60 S.Ct. at 741), assigning as a reason therefor “[p]roof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.” 310 U.S. at 97, 60 S.Ct. at 741. See, too, Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 82 L.Ed. 949 (1938), which held “invalid on its face” a licensing ordinance for the distribution of literature despite a strong suggestion that the ordinance may have been vaild if limited to obscene literature or “literature advocating unlawful conduct.” See also, Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967); Brown v. Louisiana, 383 U.S. 131, 143, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (Brennan, J., concurring in the result).
These cases all involved licensing or regulatory statutes which infringed upon First and Fourteenth Amendment rights, but they are no less applicable here where personal liberty is at stake. Thus, to me, the majority’s basis of decision is sui generis and counter to settled authority.
Generally, I accept the majority’s broad findings of fact. Significantly, the majority cannot find, and I could not find, that every defendant who is committed for nonpayment of a fine has a judicial determination of his indigency and a judicial determination of what commitment is fair and proper in lieu of payment of the fine which was imposed. Indeed, the plaintiffs to whom the majority grants relief were denied both. This, it seems to me, is the best proof of the arbitrariness and irrationality that the statute countenances. It is also compelling proof of what may occur in the future. Moreover, the intervenor scoff-law has been ordered imprisoned for nonpayment of fines for traffic offenses for which no imprisonment is provided, and the testimony before us was that the general practice in traffic cases, where the statutes often provide only for a fine and not imprisonment, is not to make inquiry concerning possible indigency, although admittedly the number of commitments is minimal.
To my mind, it is constitutionally impermissible to commit a defendant for nonpayment of a fine upon conviction of an offense which does not provide for imprisonment as a possible punishment. The reason for this conclusion is that, except in theoretical and unusual circumstances, imprisonment is a greater punishment than a fine. Hence, imprisonment for nonpayment of a fine is punishment in excess of the maximum permitted for the substantive violation prescribed by the legislature. The existence of the statutes, the enforcement of which I would enjoin, does not cure the defect; because they become operative only to the indigent and thus applied would flagrantly deny equal protection of the laws. Kelly is not to the contrary. It arose solely in the context of statutes which authorized imprisonment, as well as a fine, for their violation. Nor may the problem be as neatly avoided as the majority attempts by pointing to the fact that the intervenor will not be required to serve time in excess of “the time which might have been imposed on him on his convictions under statutes which do provide for imprisonment as well as a fine” (emphasis supplied). The fact is that he was not sentenced to imprisonment by the judicial officer whose duty it was to fix punishment under those statutes which would have authorized imprisonment, and he will be required to serve time for committing offenses for which the legislature has not authorized confinement.
I call attention to the fact that indigent defendants committed to the Baltimore City jail by the Criminal Court of Baltimore for nonpayment of fines are also within the class for which suit is brought. No evidence was presented to show how the statutes are administered in that court, so that whatever findings may be made with regard to practices in *168the Municipal Court the record is barren as to how the statutes are applied in another significant area.
I, therefore, concur in part and dissent in part as indicated herein.