The defendant is charged with unlawfully manufacturing intoxicating liquors for beverage purposes. He was convicted and sentenced to pay a fine of $500 and to imprisonment in jail for 60 days, and, in default of the payment of fine, it was ordered that defendant be imprisoned for an additional period of 6 months.
That part of the sentence of the lower court inflicting the additional imprisonment was set aside in this case, upon the ground that it exceeded the maximum punishment of 60 days fixed by section 3 of the Hood Act, Act 39 of 1921, Extra Session.
In my opinion, this ruling is clearly erroneous, for the reason that said section of said act does not pretend to fix any punishment at all in default of payment of the fine which may be imposed under said section. The maximum imprisonment fixed by said act at 60 days is not an alternative imprisonment to be imposed in default of payment of the fine, but is a primary *Page 222 imprisonment to be imposed in addition to the fine, for the violation of the act. This is made clear by the language of section 3 of said act, which is as follows:
"That any person who shall violate the provisions of this act by manufacturing * * * for sale * * * intoxicating liquors shall be guilty of a misdemeanor, and upon conviction for the first offense shall be fined not more than five hundred dollars ($500.00), and be imprisoned not less than ten days nor more than sixty days * * * and any person who shall otherwise violate the provisions of this act shall, upon conviction, be fined as hereinabove provided [not more than $500], or, may be imprisoned not exceeding the maximum limits herein above provided [not more than sixty days], or, may be both fined and imprisoned, at the discretion of the court."
The phrase, "otherwise violate the provisions of this act," as relates to the offense of manufacturing, refers to manufacturing intoxicating liquors "for beverage purposes."
While section 3 of this act makes the manufacturing "for sale" of intoxicating liquors punishable necessarily by both fine and imprisonment, it permits the trial judge to fine or imprison, or to fine and imprison at his discretion, in all cases where the manufacturing of intoxicating liquors is "for beverage purposes."
It is evident, therefore, that when the trial judge sees fit so to do, he may fine and imprison for manufacturing intoxicating liquors "for beverage purposes," as well as in cases of manufacturing "for sale"; the limit of fine and imprisonment being the same in both cases under section 3 of said act.
The maximum limit of imprisonment of 60 days was fixed in said act for the first offense, not for the purpose of limiting additional imprisonment, under section 980 of the Revised Statutes, in default of payment of fine, but merely to limit the imprisonment which might be imposed under the Hood Act for its violation in the first instance.
In obedience to the requirements of former Constitutions the Legislature has graded misdemeanors *Page 223 and minor offenses in many cases, fixing the minimum and maximum limits of fine and imprisonment in the respective acts; but that the object of such grading was not to repeal or affect section 980 of the Revised Statutes is made evident by the fact that this section remains to-day intact in the Revised Statutes of this state; its sole object being to supply an alternative sentence when omitted from any criminal statute.
Section 980 of the Revised Statutes of 1870 provides that —
"Every person being adjudged to pay a fine, shall, indefault of payment or recovery thereof, be sentenced tobe imprisoned for a period not exceeding one year."
The very purpose of this section of the Revised Statutes is to provide for the enforcement of the payment of fines, in all cases where an act fails to provide for a period of imprisonment, in default of the payment of a fine imposed under the act. If a criminal statute fails to fix its own alternative punishment, it is clear, therefore, that such omission is not to be interpreted as excluding such additional punishment, merely because a maximum limit for imprisonment is established in such statute. To exclude such alternative punishment, a statute must either prescribe such punishment itself, or plainly disclose that none shall be inflicted, as the general law in the Revised Statutes applies in all cases, unless otherwise provided in the particular act.
In the case of State v. Abraham, 139 La. 468, 71 So. 769, Mr. Chief Justice Monroe, as the organ of the court, in commenting upon section 980 of the Revised Statutes, said:
"Probably the vast majority of offenders against the criminal laws are without visible assets through which the fines imposed upon them could be collected, and, if no means were provided for enforcing their collection, the sentence to pay a fine would be, in their ears, but as the tinkling cymbal and sounding brass. What the law has done, therefore, has been to provide that a fine shall be actually imposed, *Page 224 and, in order that it shall be actually paid, has madethe further provision that, if it be not paid, theconvict shall be subjected to something worse, becauseof his default. That view of the matter has, apparently, been accepted by the lawmakers, the courts, and the bar during the greater part of the past century."
It is true that the Legislature could have provided in the Hood Act that, in default of the payment of the fine, the convicted person should be imprisoned in the parish jail not more than 60 days. But the Legislature has failed to do so. This, however, is no legal or good reason why convicted persons should evade the payment of such fines, as section 980 of the Revised Statutes was enacted to supply a means of enforcing payment of a fine by imprisonment, in all cases in which a criminal statute of the state has omitted to provide for such enforcement by an alternative sentence. In such cases a criminal statute must be construed in reference to, and enforced under, section 980 of the Revised Statutes, as to payment of the fine, unless otherwise provided in such statute. I know of no authority for splitting the primary imprisonment in a criminal statute into halves, or other fractions, in order to include under such imprisonment, and thereby enforce, the payment of a fine, in the absence of provision for an alternative period of imprisonment in the statute.
A "fine" is not a debt. It is a sum expressly imposed in lieu of, or in addition to, a term of imprisonment, or as any part of the punishment for an offense. State v. Brannon, 34 La. Ann. 946; State v. Joseph, 137 La. 53, 68 So. 211; State v. McGuire,152 La. 953, 94 So. 896.
The fine of $500 which has been imposed in this case is not in lieu of a term of imprisonment, but it is in addition to the term of imprisonment, and a part of the punishment for the offense of manufacturing intoxicating liquors. Can it be seriously contended that the Legislature, after providing *Page 225 for punishment, both by fine and imprisonment, should have intended to relieve the person convicted under the Hood Act of that part of the punishment covered by the fine?
The Hood Act has completely failed to provide any additional punishment for the default in the payment of the fine, and such punishment must therefore be found under section 980 of the Revised Statutes.
It is inconceivable to my mind that the Legislature should permit a fine as high as $500 to be imposed under the Hood Act, and, in addition to this fine, should provide imprisonment only for the light maximum limit of 60 days, and should have then intended to include in that petty term of incarceration the full punishment, both for the imprisonment actually inflicted, and also for the default in the payment of a fine, which is so large as to be out of all proportion to a jail sentence so insignificant as a penalty, even if inflicted as a punishment for the fine alone.
The Legislature of 1921 was well aware of the existence of section 980 of the Revised Statutes providing for imprisonment in default of payment of fine, and if it had been the intention of the lawmaking body to have excepted the Hood Act from the operation of that section of the Revised Statutes, a provision would have been inserted unquestionably in said act fixing the limit of imprisonment in default of payment of fine; but this has not been done. The penalty for default in payment of fine in such cases has been left by the Legislature under section 980 of the Revised Statutes.
The Legislature of 1921, however, was careful to place specific provisions in the Hood Act relative to the punishment for second and subsequent violations, and to except that act from the operation of section 974 of the Revised Statutes, a general law, by providing in said act a punishment for all second and subsequent violations, different from that contained in said section.
When an act makes no express provision *Page 226 for imprisonment in default of payment of a fine, such act cannot be said to be in conflict with section 980 of the Revised Statutes, nor can it be logically contended that such section does not apply, as said section applies only in case of the failure of an act to contain a provision for an alternative punishment, when a fine is not paid.
It is to be observed that the additional imprisonment imposed under section 980 of the Revised Statutes is not a primary punishment under the Hood Act, or any other act, but it is a remedial statute, enacted and intended solely to enforce the payment of a fine already imposed as a penalty under an act, when such act has failed so to do.
The maximum limit of 60 days' imprisonment which may be imposed under the Hood Act is not an imprisonment in default of payment of the fine, but a primary imprisonment under the act itself, and is independent of and in addition to the fine. How then can it be seriously contended in this case that such maximum limit of imprisonment was intended to exclude punishment for default in payment of the fine?
Under this section of the Revised Statutes, this court has repeatedly held in liquor cases that imprisonment for a period not exceeding one year may be inflicted, in default of payment of fine, in addition to the imprisonment prescribed by the statute. State v. Williamson et al., 133 La. 1052, 63 So. 515; State v. Boulanger, 134 La. 13, 63 So. 607; State v. Hollingsworth,134 La. 555, 64 So. 409; State v. Payne, 134 La. 269, 63 So. 899.
This is the settled jurisprudence of this state, and I find nothing contained in the Hood Act in conflict therewith, as said act does not include any alternative punishment in default of payment of the fine, nor does its language purport in any way to amend or repeal section 980 of the Revised Statutes.
The effect of the opinion of the court in this case is not only to take "the teeth" out *Page 227 of the state prohibition enforcement act, but it goes much further, and affects the efficient enforcement of other statutes of the state of a similar character, by virtually repealing section 980 of the Revised Statutes, and thereby making it legally impossible to enforce the collection of any fine imposed under a criminal statute in this state, unless such statute itself should expressly provide for imprisonment in default of payment of the fine.
This provision has been left out of many of the criminal statutes of the state by the Legislature, because, in its absence, section 980 of the Revised Statutes, a general law, provided for the enforced collection of fines by imprisonment in default of payment.
The decision in this case renders less efficient the enforcement of all graded misdemeanors and minor offenses, because the acts in such cases have necessarily fixed the maximum fine, in obedience to the constitutional mandate.
The judgment in this case is, in my opinion, clearly erroneous and should be annulled and set aside.
I therefore respectfully dissent.