In re Ah You

I concur in the order discharging the petitioner, upon the ground that under a penal statute or ordinance imposing imprisonment not excéeding a certain term or fine, or both, a defendant cannot be kept in jail under the pretense of enforcing the fine for a term longer than the maximum term of imprisonment prescribed by the statute. This has always been my opinion. In this case the petitioner should have been discharged at the end of six months, which is the maximum term of imprisonment prescribed. Under the other view (if the ordinance be valid), the petitioner could have been fined one thousand dollars, and in default of payment sent to jail for one thousand days, which, under the circumstances, would have been still more cruel and absurd.

The petitioner was convicted in the police court of the city and county of San Francisco of a misdemeanor, for visiting a house of ill-fame, and on the seventh day of March, 1890, was sentenced to “pay a fine of four hundred dollars, and in default of payment thereof, that he be imprisoned in the county jail of said city apd county at the rate of one day for each one dollar of fine until said fine is satisfied.” Under a commitment issued upon this judgment he was immediately taken into the custody of the sheriff, and has since that day been confined in the county jail of San Francisco.,

Section 33, order No. 1587, as amended by order No. 1955, of the board of supervisors of the city and county of San Francisco, under which his conviction was had, is as follows: “It shall be unlawful for any person in the city and county of San Francisco to keep or maintain, or become an inmate of, or a visitor to, or in any manner to contribute to the support of, any disorderly house, or house of ill-fame, or place for the practice of gambling, or knowingly let or underlet or transfer the possession of any premises for use by any person for any of said purposes. Every person who shall violate any…