I dissent. It is practically held by the opinion that, section1205 of the Penal Code having no application to proceedings for contempt under sections 1209 et seq. of the Code of Civil Procedure, any court imposing a fine upon a person as a punishment for contempt may direct that he be imprisoned until such fine is paid. The limitation of section 1205 of the Penal Code, not being applicable, and no limitation being elsewhere made by our statute law, such imprisonment may be continued indefinitely, and as it is held with practical unanimity that imprisonment for mere non-payment of a fine is not imprisonment for debt, and it being reasonably clear that the contempt in such a case as this is a criminal as distinguished from a civil contempt and that mere inability to pay the fine will not be a sufficient warrant for discharge from imprisonment under section 1143 et seq. of the Code of Civil Procedure (see In re Wilson,75 Cal. 580, [17 P. 698]), such imprisonment may be continued indefinitely even though the imprisoned party is without any property from which to pay such fine. Such imprisonment may be ordered by any court of justice, including a justice's court. This is the necessary effect of the opinion. And this conclusion is reached although there is no provision in the law applicable to such contempt proceedings that expressly or impliedly authorizes imprisonment for non-payment of a fine.
In my opinion, if section 1205 of the Penal Code has no application in such cases, it follows that a court is without power to imprison for mere non-payment of a fine imposed by it as a punishment for contempt of court in proceedings had under section 1209 et seq, of the Code of Civil Procedure.
The punishment that may be prescribed for such contempts is expressly specified in the statute. "A fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding five days, or both." (Code Civ. Proc., sec. 1218) Section 1219 of the Code of Civil Procedure specifies the only case in which other imprisonment may be required, being as follows: "When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he has performed it, and in that case the act must be specified in *Page 385 the warrant of commitment." The contempt in the case at bar was not of this character and the section is without application. Section 1007 of the Code of Civil Procedure, which undoubtedly is applicable to such contempt proceedings, provides: "Whenever an order for the payment of a sum of money is made by a court, pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment." This section affords a remedy by execution in such cases, which, to my mind, is the only method authorized by law for the enforcement of such a fine, if section 1205 of the Penal Code is not applicable.
This being the condition of the statutory law in this state, the opinion necessarily proceeds upon the doctrine declared inFischer v. Hayes, 6 Fed. 71, "that where a statute authorizes or prescribes the infliction of a fine as a punishment, either for a contempt of court or for a defined offense, it is lawful for the court inflicting the fine to direct that the party stand committed until the fine be paid, although there be no specific affirmative grant of power in the statute to make such direction." It is to be observed that no distinction is made here between contempts of court and other offenses. In any case, the power to impose a fine carries with it the power to adjudge imprisonment for non-payment of the fine and until the fine be paid.
I do not think that the doctrine of this case can properly be held applicable in this state. It is generally recognized that a judgment imposing a fine in a contempt matter, where the fine is solely punitive and in no way remedial, stands on the same plane as a judgment imposing a fine in the case of an ordinary criminal prosecution. (7 Am. Eng. Ency. of Law, 2d ed., p. 67.) The fine is simply a punishment for an offense. The supreme court of Ohio in Brown v. State, 11 Ohio, 277, where a defendant was convicted of crime and judgment of fine given, with a commitment to imprisonment until the fine and costs were paid, held that the commitment was unauthorized, saying: "When common law jurisdiction is entertained, and courts proceed according to its course, this power exists; but when offenses are statutory, punishments regulated by statute, and no such authority of commitment is declared, it is a power not inferred, does not exist, and cannot be exercised." In Lougee v. State, 11 Ohio, 72, the same court said: "Unless *Page 386 it is so provided by statute, the court has not power to order that a criminal stand committed for the non-payment of a fine." The correctness of the view stated in Brown v. State, 11 Ohio, 277, will not, I think, be doubted. Is it not applicable in California? In the absence of statute, no act or omission is here punishable as a public offense, and only such punishments can be awarded as are authorized by statute. Our codes and other statutes undertake to cover the whole field of public offenses and the punishments that may be imposed therefor. By section 4 of the Code of Civil Procedure, it is declared that "the code establishes the law of this state respecting the subjects to which it relates." It has always been recognized by our legislature that statutory authorization for imprisonment for non-payment of a fine is essential to its exercise, as is shown by sections 1205 and 1446 of the Penal Code, where such authority is conferred, to be exercised with certain prescribed limitations. In Ex parte Rosenheim, 83 Cal. 388, [23 P. 372], by the judgment pronounced on conviction of a public offense, both imprisonment and fine were imposed, as was authorized by law, and it was further adjudged that in the event of the non-payment of the fine, the defendant be further imprisoned until the fine be satisfied at a certain rate per day. This court concluded that section 1205 of the Penal Code had no application to a judgment by which both imprisonment and fine were imposed, and having so concluded held that as there was no statutory authority for imprisonment for non-payment of the fine in such a case, the judgment to that extent must be held void and the prisoner discharged. It was said: "Unless it (the legislature) has clearly conferred upon the court authority therefor, it is our duty to hold that the additional penalty cannot be imposed." This case has been followed several times, and clearly decides that express statutory authority is essential to warrant imprisonment for mere non-payment of a fine. There is, as already said, no material difference in the case of the imposition of a fine on conviction for a criminal contempt of court under section1209 et seq. of the Code of Civil Procedure.
It has been held in New York that where a statute authorizing a fine on conviction of a public offense prescribes a particular method for the enforcement, as by docketing the fine and issuing execution thereon, the court has no authority to *Page 387 sentence the defendant to imprisonment for non-payment of the fine (People v. Stock, 26 App. Div. 564, [50 N.Y. Supp. 483], affirmed in 157 N.Y. 681, [51 N.E. 1092]). We have seen that our Code of Civil Procedure prescribes such a remedy for the enforcement of a fine (sec. 1007), and this is the only remedy expressly prescribed unless the Penal Code sections are applicable.
There is no opinion of this court that contains anything in conflict with the foregoing other than the opinion in Ex parteCrittenden, 62 Cal. 534. The decision in Ex parte Abbott, 94 Cal. 333, [29 P. 622], was by the chief justice in a matter heard and decided by him alone, and he very properly considered himself bound, as expressly stated in his opinion, by the opinion of the court in Ex parte Crittenden, 62 Cal. 534. The whole discussion of the question at bar in the opinion of the court in the case last mentioned consists of the quotation from Fischer v. Hayes, 6 Fed. 71, set forth in the main opinion herein and no question appears to have suggested itself as to the applicability of the doctrine therein enunciated in view of such statutes as we have in this state. As already indicated I believe that the opinion inEx parte Crittenden, 62 Cal. 534, is erroneous and that it is directly in conflict with Ex parte Rosenheim and kindred cases, and that the views therein expressed should be disapproved by this court.
I do not desire to be understood as assenting to the view that section 1205 of the Penal Code has no application in such cases as this. It has never been so held by this court, the only decision to that effect in our reports being Ex parte Abbott,94 Cal. 333, [29 P. 622], a decision made by a single justice. It may be that section 11 of the Penal Code, on which that decision is based, can reasonably be held to have no reference to such contempts as are purely criminal as distinguished from civil. If section 1205 of the Penal Code does apply, the time during which the petitioner may be imprisoned for mere non-payment of the fine had expired. If it does not apply, there was never, in my opinion, any authority for his imprisonment at all for such non-payment.
The decisions from other states cited in the majority opinion, with the exception of the Georgia decisions, will each be found upon examination to be based upon the conclusion that a statute of the state either expressly or by necessary implication *Page 388 authorized imprisonment for the non-payment of the fine. The only Georgia decision in point is that of Brock v. State, 22 Ga. 100, decided in the year 1857. The other Georgia decisions cited do not involve the point under discussion.
For the reasons stated, I am of the opinion that the petitioner should be discharged from custody.
Henshaw, J., concurred.