In Re Application of Murphy

*660 BEAN, J. A fine is defined as a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor: 25 C. J. 1148. The statute provides how the sentence of a fine may be discharged in lieu of a money payment. It states that the judgment must direct that the party be imprisoned until the fine be satisfied; that the judgment must specify the extent of the imprisonment; and that the extent of the same must not exceed one day for every $2 of the fine. It further provides that omission to specify the same shall operate to require the defendant’s imprisonment until said fine is satisfied at the rate of $2 per diem. In other words, the statute permits the performing of a sentence of a fine in two ways, one alternative being the payment of the fine in money, the other by serving the time in jail at a specified rate, either method being equally effective to secure the defendant’s ultimate discharge. We see no good reason why days lain out in jail, at the prescribed rate, should not be applied pro tanto to reduce the fine. We fully agree with the holding in Harlow v. Clow, 110 Or. 261 (223 Pac. 541), cited by the respondent, to the effect, that the imprisonment for a failure to pay a fine is not unconstitutional as being an imprisonment for debt, forbidden by the Constitution, but a means of enforcing the payment of the fine. We believe, however, that the provisions of Section 1577, Or. L., permit time served in jail at the rate specified by the judgment or statute to be applied toward the part satisfaction of the fine. We' must hold, therefore, that the alternative of imprisonment may be reduced by the partial payment of the fine, and that imprisonment for a portion of the time may reduce the amount of fine to be paid. *661 The California statute is similar to that of Oregon: Section 1205, Peering’s Penal Code of California, 1923. The following construction is given it: “A defendant is entitled to his, discharge upon payment of the fine. * * And the courts by judicial construction of the statute have determined that where he has served a portion of the term of imprisonment, he is entitled to his discharge upon payment of the balance of the fine, not satisfied by imprisonment at the rate specified.” 8 Cal. Jur., § 488, p. 473. Citing Ex parte Henshaw, 73 Cal. 486, 496 (15 Pac. 110); Ex parte Kelly, 28 Cal. 414; Ex parte Riley, 142 Cal. 124 (75 Pac. 665). In Ex parte Kelly, supra, Mr. C. J. Sanderson said: “There is no force in the point that the defendant' is bound to satisfy the whole fine by imprisonment and cannot be allowed to pay the unsatisfied portion of his fine and be thereupon discharged from custody. For each day which he has or may hereafter pass in prison he is entitled to a credit of two dollars upon his fine and he may at any time pay the sum then remaining unsatisfied and claim his discharge from custody.” Where under the statute, the imprisonment operates as a satisfaction of the fine at a certain rate per day, the prisoner may at any time pay the sum remaining unsatisfied and claim his discharge: 25 C. J. 1160, § 26. Section 1577, Or. L., plainly authorizes the satisfaction of a judgment to pay a fine by imprisonment, at the rate of $2 for every day of confinement in jail. There is no incongruity between this section and Section 1579, providing for the docketing as a judgment in a civil action, and with like effect, as provided in Section 205, of a judgment that the defend *662 ant pay money either as a fine or as costs and disbursements of the action, or both. Section 1579, together with Section 205, simply provides an additional method of enforcement of the payment of a fine and costs. Section 205 does not, however, authorize the issuance of an execution, or the enforcement of such a judgment after the same has been satisfied either by payment or imprisonment for the required time. The law does not contemplate that a defendant shall expatiate the offense of a misdemeanor more than once. While Murphy was serving time in the county jail he was subject to work on the county roads, or other public works, under the provision of Section 3543, Or. L., giving the County Court power to cause such convicts to perform such work. If the County Court had exercised such authority that section directs that “in the default of the payment of a fine such convict shall be made to labor at the rate of $2 per day until such fine is fully paid.” The County Court would not be compelled to employ a guard, or make arrangements for working one prisoner, and in the event that the County Court does not require such work of a prisoner it would not affect the time of sentence. The case of Galles v. Wilcox, 68 Iowa, 664 (27 N. W. 816), appears at first glance to support the contention of the respondent, but the Iowa statute differs from ours. The lower court erred in denying the writ of appellant, and the judgment is reversed and the cause remanded with instructions to enter judgment, allowing the writ and discharging the petitioner upon the payment of the balance of the fine tendered. Reversed and Remanded. McBride, C. J., and Coshow, J., concur.