Petitioner has been held in custody by the sheriff of the county of Los Angeles on a commitment for *Page 379 contempt of court consisting of a violation of an injunction issued by the superior court in the case of the Pacific Ornamental Iron Works (a corporation), v. Metal Trades Council, Los Angeles, California, an association, Louis Karlson et al. It is unnecessary to review in detail the acts of Karlson found by the court to constitute the contempt for which he has been fined. It is sufficient to say that they were in violation of the injunction.
Petitioner's principal and only serious objection urged upon the hearing of this matter was directed to the method whereby the fine imposed was to be satisfied, therefore we need only consider the punishment sought to be inflicted. Under the terms of the commitment a fine of two hundred dollars was imposed upon this petitioner and it was further provided that "upon his failure to pay such fine he be committed to the county jail until such fine is paid at the rate of one day's imprisonment for each two dollars of said fine." When the petition for a writ of habeascorpus was filed Karlson had been in custody for non-payment of his fine under this commitment for a period of more than five days, but not long enough to entirely satisfy the fine by imprisonment. The question for us to determine, therefore, is this: May a court enforce payment of a fine imposed upon one found guilty of contempt by commitment to prison for more than five days?
Petitioner concedes that the court had jurisdiction to impose a fine of two hundred dollars (Code Civ. Proc., sec. 1218), and that such fine may be enforced by an execution as is a judgment in a civil action, but he insists that sections 1218 of the Code of Civil Procedure, and 1205 of the Penal Code, are binding upon the court and determinative of the whole matter. The former section provides that a court has jurisdiction to punish for contempt by fine not exceeding five hundred dollars, or by imprisonment for not more than five days, or by both such fine and imprisonment; but section 1205 of the Penal Code ordains that imprisonment as a means of enforcing the payment of a fine shall not "extend in any case beyond the term for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted." Petitioner's position would be impregnable if we were bound by the provisions of section 1205 of the Penal Code.
Before the amendment to that section limiting the term of imprisonment for satisfaction of a fine to a period equal to the *Page 380 maximum term for which the court might commit to prison without alternative, this court speaking of the action of the lower court in a case very similar to the one at bar said (In re Tyler,64 Cal. 438, [1 P. 887]): "In the punishment inflicted, the court did not exceed its jurisdiction. It had jurisdiction to punish by fine not exceeding five hundred dollars, or imprisonment not exceeding five days, or by both. (Code Civ. Proc., sec. 1218) In the exercise of its jurisdiction, it imposed a fine of five hundred dollars, and that exhausted its statutory power of punishment; but the committal was not an additional punishment, it was simply the written mandate or process by which the court undertook to enforce its judgment. A judgment of fine is enforceable by an execution, as on a judgment, in a civil action (Pen. Code, sec. 1214; Code Civ. Proc., sec. 1006) or by commitment under the criminal law. (Pen. Code, sec. 1205.) A person against whom such a judgment has been pronounced has, therefore, the privilege, under the law, of paying it either by money or by imprisonment. If he pays in money there can be no commitment. If he refuses to pay in that way, the commitment follows, as an incident to the judgment, until the judgment has been complied with according to law." If the measure of imprisonment for the collection of a fine in such a case was section 1205 of the Penal Code before its amendment, then, petitioner insists, the same section as amended, with the limitation which has been added should now prescribe the maximum imprisonment for the collection of a part of this fine. But in Exparte Abbott, 94 Cal. 333, [29 P. 622], the chief justice held that section 1205 of the Penal Code had no application to cases of contempt because section 11 of the same code expressly declares that "this code does not affect any power conferred by law upon any . . . tribunal, or officer, to impose or inflict punishment for a contempt." Speaking of the measure of punishment for contempt of court he said in that case: "The power to punish for contempt of court, and its limitations, must therefore be sought elsewhere than in the Penal Code, and they are found in the Code of Civil Procedure, section 1209 et seq. The limit of punishment there prescribed is a fine not exceeding five hundred dollars, or imprisonment not exceeding five days, or both. (Code Civ. Proc., sec. 1218) The power conferred by this section is not affected by any of the provisions of the Penal *Page 381 Code. In Ex parte Crittenden, 62 Cal. 535, it was held that the court imposing a fine for contempt has the power to make and enforce a judgment such as that in question here, and that, as I understand the decision, without reference to or aid from section1205, or any other provision of the Penal Code. That decision has never been overruled or questioned, to my knowledge, and remains the law by which I must be bound in deciding this application."
It will be noted that in the opinion in In re Tyler, 64 Cal. 438, [1 P. 887], the court made no reference to section 11 of the Penal Code, and doubtless, that section was not called to the attention of Mr. Justice McKee, who wrote the opinion from which some of the language quoted above is called to our attention by petitioner's counsel. In that opinion, however, and in the concurring opinions signed by four other justices, Ex parteCrittenden, 62 Cal. 535, is expressly affirmed, and no case has been called to our attention changing the rule there announced. In that case the court said: "But it is claimed that it was not competent for the court to imprison the petitioner under an order or judgment simply imposing a fine. In the case of New Orleans v.Steamship Co., 20 Wall. 392, [22 L. Ed. 354], the supreme court of the United States says: `Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were a judgment upon an indictment for perjury committed in a deposition read at the hearing. . . . In Crosby'sCase, 3 Wilson, 188, Mr. Justice Blackstone said: "The sole adjudication for contempt, and the punishment thereof, belongs exclusively and without interfering to each respective court."'
"The question of contempt of court and the punishment thereof has recently undergone a thorough examination in the case ofFischer v. Hayes, 7 Fed. 96. In that case Blatchford, J., says: `It is suggested that section 725 [Rev. Stats., U.S. Comp. Stats., 1901, p. 583], provides for the punishment of a contempt by a fine or imprisonment, and that, therefore, a commitment for nonpayment of the fine is unlawful, because such commitment is "imprisonment." There is, however, no commitment or imprisonment if the fine be paid. There is no commitment and fine. The punishment by a fine is fully inflicted, under the terms of the order, if the fine be paid as the *Page 382 order directs, and in such case there can be no commitment. So, if there be a commitment for non-payment of the fine, there must be a discharge as soon as the fine is paid. The payment of the fine is the punishment. The awarding or infliction of the fine is no punishment. The commitment is an incident of the fine. It is not, in any manner, the "imprisonment" allowed by the statute. The payment of the fine, and a commitment for not paying it, cannot co-exist. The commitment is not a separate punishment or imprisonment added to the payment of a fine. It is in this view that it has always been held 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 is paid, although there be no specific affirmative grant of power in the statute to make such direction.'" (The language quoted from Fischer v. Hayes, by the way, is not found in the report of that case in 7 Fed., p. 96, but in 6 Fed., at p. 71.)
The common law of England is the law of this state, so far as it is not repugnant to our own statutes and constitution. (Pol. Code, sec. 4468.) The rule of the common law that the payment of a fine might be enforced by imprisonment until the fine is paid, was the uniform practice of the common law courts in England, time out of mind, as may be seen by a perusal of the decisions of the court of kings bench. "Directing that the prisoner shall stand committed till the fine, or till the fine and costs are paid, is not adding to the legal punishment, but simply a mode of enforcing obedience to the sentence of the law. The usual form of the common-law judgment is, that the prisoner stand committed till the fine is paid." (Dodge v. State, 24 N.J.L. 466.) There is abundant authority to this effect in addition to the cases already cited. (See 8 Ency. of Plead. Prac. 961; Rex v.Waddington, 1 East 166; Rex v. Wilkes, 4 Burr. 2574; Harris v.Commonwealth, 40 Mass. (23 Pick.) 280; Brock v. State,22 Ga. 100; McMeekin v. State, 48 Ga. 335; Hathcock v. State, 88 Ga. 91, [13 S.E. 959]; In re Newton, 39 Neb. 760, [58 N.W. 436]; State v.Manning, 14 Tex. 402; Bishop on Criminal Procedure, sec. 1310.) The provision of the Code of Civil Procedure that courts may punish a contempt by imposing a fine is consistent with this rule of the common law as to the method of enforcing its payment. *Page 383
The provision of the section 1007 of the Code of Civil Procedure, that an order for the payment of money may be enforced by execution against property, is merely a cumulative remedy. In many cases an execution would be an ineffective means for the collection of a fine. The property of persons of wealth is often beyond reach of execution. At common law, payment of a fine could be enforced both by a capias ad satisfaciendum, that is imprisonment, and by a levari facias, that is, an execution against property. (2 Tidd's Prac., 1042; 1 Bishop on Criminal Procedure, sec. 1303.) The two methods are not inconsistent. Section 1007 is general in its terms and applies to all orders. It may apply to a judgment imposing a fine, but there is nothing indicating an intent to make it exclusive or to take away the common law power to enforce a fine by imprisonment.
The Penal Code declares, in effect, that the provision that no act shall be punishable as a crime except such as may be made a crime by statute, and then only in the manner prescribed or authorized by statute (sec. 6), shall not apply to contempts punishable under section 1209 of the Code of Civil Procedure (sec. 11). It necessarily follows that the Penal Code has no application to a civil contempt, and that, the question whether the particular act is punishable as a criminal contempt or not, under section 166 of the Penal Code, is immaterial to any inquiry arising in a contempt proceeding under section 1209 If, after such punishment in such civil proceeding, a person is convicted of the same act as a crime under said section 166, the former punishment may mitigate the severity of the sentence upon the subsequent conviction. (Pen. Code, sec. 658.)
The danger that persons may be imprisoned for an unlimited period for non-payment of a fine for contempt is, as we think, completely removed by the constitutional guaranty that, "excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted." (Art. I, sec. 6.) There would be, also, perhaps, recourse to the pardoning power in extreme cases.
It follows herefrom that there is no merit in petitioner's contention, therefore the writ is discharged and the petitioner is remanded.
Shaw, J., Sloss, J., and Lorigan, J., concurred. *Page 384