Ex parte Green

I dissent. The maximum term of imprisonment prescribed by the ordinance is ten days; and I do not think that the petitioner can be legally imprisoned longer than that time. The law under which he was tried is, not the charter, but the ordinance; and as that law prescribes ten days as the maximum term of imprisonment, he cannot, under the general statutory rule, be imprisoned longer than that time under the guise of working out a fine.

When the legislature said that violations of the ordinances might be punished by “fine or imprisonment, or both,” it meant to provide for precisely the same kind of punishment it has provided for in a multitude of cases in the Penal Code, where the court is authorized to impose a fine or imprisonment, or both. We have held here, in several cases, lately, that the power to impose a fine or imprisonment, or both, does not include the power to impose a fixed term of imprisonment and a fine, and also imprison ment for non-payment of the fine. The judgment may be for a fixed term of imprisonment, and a fine to be enforced by execution, but it cannot be for a fixed term, a fine, and imprisonment in satisfaction of the fine. (Ex parte Rosenheim, 83 Cal. 388; Lowrey v. Hogue, 85 Cal. 600 .) It seems to me that there is an obvious inconsistency between those decisions and the decision in this case.

It is said that the trustees are clothed with general authority to enforce all municipal regulation, and that imprisonment is a common and not an unreasonable mode of enforcing payment of a fine. The same thing could have been said in the Rosenheim and other cases; but the question there…

The return of the city marshal of the city of Pomona shows that he holds the petitioner in custody in the city jail of said city under and by virtue of a commitment issued out of the recorder’s court of said city, which recites that petitioner was convicted in said court of the crime of misdemeanor committed in said city, and upon such conviction said court ordered and adjudged that for said offense petitioner be imprisoned in the city jail of said city of Pomona for a period of ten days and fined $150, and that in default of the payment of said fine he be imprisoned in said city jail in the proportion of one day’s imprisonment for each and every two dollars of said fine until the said fine be wholly satisfied, not exceeding seventy-five days, and that he be discharged on payment of such proportion of said fine as shall not have been satisfied by imprisonment at the rate prescribed. Then follows the command to said marshal to take and imprison petitioner in said jail ten days, and also in the proportion of one day’s imprisonment for each and every two dollars of the fine not otherwise satisfied, not exceeding seventy-five days, and to discharge petitioner upon payment into court…