The People v. Cary

Mr. Justice Thompson delivered the opinion of the court: Plaintiff in error was convicted in the county court of Rock Island county of the violation of the Illinois Prohibition act under the first count of an indictment charging unlawful possession of intoxicating liquor and was sentenced to pay a fine of $1000 and costs. It was also “ordered by the court that if said fine and costs are not paid in full, the said defendant shall stand committed to the county jail of Rock Island county, Illinois, and there work out said fine and costs at the rate of $1.50 per day under the direction of the sheriff as the county board may provide for, or until said fine and costs are fully paid -in this manner, or until said defendant is otherwise discharged as provided by law.” The jurisdiction of this court is invoked on the ground that the judgment of the county court is excessive and without authority of law and in violation of that part of section 11 of article 2 of the constitution which provides that "all penalties shall be proportioned to the nature of the offense.” Section 33 of the Illinois Prohibition act, which prescribes the punishment for the offense in question, provides that the person convicted may be either fined not less than $100 nor more than $1000, or imprisoned not less than sixty days nor more than six months. Plaintiff in error contends that the maximum term of imprisonment fixed by this section of the Prohibition act is exceeded in this case by the commitment of plaintiff in error to the county jail to work out the fine at the rate of $1.50 a day, because if the fine is not paid and she is compelled to work it out she will be confined 666 days. Defendant in error relies upon the provisions of the Criminal Code to sustain that part of the judgment ordering the fine to be worked out. It was not contended on the trial, nor is it contended here, that either section 33 of the Prohibition act or the provision of the Criminal Code as to working out fines is unconstitutional. The assignment of error as to the sentence of the court being excessive is based on the ground that the county court improperly construed the section of the Prohibition act fixing the penalty for its violation and improperly applied paragraph 391 of chapter 38 of Smith’s Statutes.' This does not raise a constitutional question but a question of statutory construction. A punishment authorized by law cannot be said to be disproportionate to the nature of the offense unless the law under which the punishment is imposed is subject to that objection. (People v. Elliott, 272 Ill. 592.) Where'the court imposes a sentence within the limits of the statute no constitutional question as to the punishment being disproportionate can be involved by merely attacking the sentence. It'is necessary to attack the law and show that it violates the constitution in order to raise the question., This court is therefore without jurisdiction. Boylan v. Chicago Title and Trust Co. 240 Ill. 413. The cause is transferre'd to the Appellate Court for the Second District. Cause transferred.