Ex parte Joice & Smith

SOMEBVILLE, J. The petitioners were convicted o£ carrying on a lottery contrary to the provisions of section 4068 of the Code (1886), which is punishable by fine alone, without imprisonment. The justice imposed a fine of one hundred dollars, the least amount authorized by the statute. Justices of the peace in Madison county are vested with “original jurisdiction, concurrent with the Circuit Court, of all misdemeanors committed in said county,” by the act approved February 8th, 1877. — Acts 1876-77, pp. 197-198. Pursuant to this authority, the justice adjudged the defendants guilty, and awarded, by way of punishment, “a fine of one hundred dollars, and the costs of the proceeding.” The defendants paid the fine, but failed to pay the costs. The contention of the petitioners now is, that, inasmuch as there was no hard labor imposed on them as defendants to enforce the payment of the fine, there could not be a sentence imposed on them for costs. In other words, as stated by counsel, before there can be a sentence to hard labor for costs, there must be a preliminary sentence to hard labor, either in default of the payment of the fine, or in the execution of the original judgment of the court. In support of this view a strict adherence to the letter of the statute is invoked, as it is found embodied in section 4504 of the Code (1886). The naked question is, whether a defendant is to be permitted to resort to the device of paying his fine, and thus entirely escape the payment of the costs. If this can be done, the purpose can be effected as well where a nominal fine of one cent is imposed, as where the fine is a hundred, or a thousand dollars. Do the statutes, embraced in our Penal Code, relating to imprisonment for the enforcement of fine and costs, contemplate this result? Was this the legislative intention, as gathered from all the statutes bearing on this subject?' — Code, 1886, §§ 4501-4504. Imprisonment, as a legal punishment for crime in this State, is authorized for three distinct purposes: (1) As a distinct penalty for the particular offense, either in the penitentiary, the county jail, or by way of sentence to hard labor for the county (Code, §§ 4492-4498); (2) to enforce the payment or satisfaction of the fine imposed by the court or the jury, which may be by imprisonment in the county jail, or by sentence to hard labor for the county (§ 4503); and (3) to enforce the payment of the costs, which is alone by sentence to hard labor for the county (§ 4504). We may add, just here, that — 131 — no reason in the nature of things can be perceived, why the legislature should make the imposition of either of these separate punishments a sine qua non, or condition precedent to the imposition of the other. Each has its own function, • and its own sphere to fill, clearly distinct from that of the other two. Imprisonment, as a satisfaction of the fine imposed, has always prevailed in this State, and in every other country where an enlightened system of criminal jurisprudence obtains. It is the only practical alternative, where the defendant refuses to pay or secure the fine. The plain purpose of the legislature for the past twenty years has been, to place the 'enforced payment of certain costs upon a like compulsory basis. Such of these costs as are incurred by the State in the prosecution of the offender, are produced by the fault of the defendant. The justice of imposing them on the convicted criminal is a question purely of legislative policy, with which the courts can have no concern, except to ascertain the intent of the law-making power as to the conditions and mode of their enforcement. The constitutional validity of statutes enforcing the payment of such costs by imprisonment of the defendant has been raised before this court time and again, and they have uniformly been held to be constitutional, and not to violate that provision of the constitution which prohibits imprisonment for debt. It was said in Caldwell v. The State, 55 Ala. 133 (1876), which arose under sections 3760, 3762 and 4061 of the Eevised Code of 1867, corresponding to sections 4503, 4501, and 4504, respectively, of the present Code, that “the legislature intended [thereby] to make the non-payment of costs, imposed in a criminal case, the ground of an increase of punishment.” And again: “It [the statute] simply augmented, to that extent, the punishment imposed, as a consequence of the non-payment of fine and costs.” In Exparte State, in re Long, 87 Ala. 46, the origin, history and construction of these statutes, were fully discussed. The defendant in that case had been convicted of vagrancy, and fined twenty dollars, and was sentenced to imprisonment to pay the fine, and to hard labor in default of the payment of costs. It was contended in his behalf, that inasmuch as the offense was punishable by fine only, and no preliminary sentence to hard labor as a penalty for the particular offense itself was authorized, there could be no imprisonment by hard labor to enforce the costs, A strict and technical read — 132 — ing of section 4504 of the Code (1886) seemed to justify this narrow interpretation, but it was repudiated by a majority of the court; and we held, in accordance with the uniform practice of the nisi prius courts, that there could be a lawful sentence to imprisonment by hard- labor to satisfy costs, without a previous or preliminary “judgment against the accused that he perform hard labor for the county,” as the letter of the statute apparently requires. It was thought that the interpretation contended for would defeat the plain legislative purpose to enforce the payment of costs by hard labor for the county in all cases of that character, and for this reason it was rejected, and for the further reason that a contrary construction had been long ago adopted by this court. The contention in the present case is based upon a like attempt to adhere so closely to the letter of the statute as to defeat the obvious purpose of its enactment. There is a class of cases in the criminal, not less than in the Christian Code, where “the letter of the law killeth, and the' spirit giveth life.” The present case is of that class. It must have been intended that- the statute, in its strict letter, should apply only to those cases where a preliminary judgment can be lawfully rendered that the accused “perform hard labor for the county,” not to those where such a judgment is both unnecessary and unauthorized. The offense in question is punishable only by fine. The statute requires both the fine and costs to be paid, or secured. Imprisonment is the authorized mode of enforcing the one as much as the other. “If,” says the statute, “the fine and the costs are not paid,” &c.' — § 4503. The officer had no authority to receive the fine so as to release the costs. The rights of the State could not, therefore, be prejudiced by receiving the one without the other. The case of Nelson v. The State, 46 Ala. 186 (1871), is directly in point. There, the defendant was fined the sum of twenty-five dollars by the court. He paid the fine, as here, and refused to pay the costs. Failing to pay the costs, or to confess judgment for the same, he was sentenced to hai’d labor for the county to pay the costs. He moved for his discharge from this judgment. This court refused the motion, but reversed the judgment, on the ground that the fine was fixed by the court, while the statute required it to be fixed by the jury. If the contention in this case is correct, the defendant was entitled to his discharge. — 133 — So, in Morgan v. The State, 47 Ala. 34 (1872), the defendant was convicted of an assault and battery, and fined one dollar, and judgment was rendered for the fine and costs of prosecution. She paid the fine, and refused to pay or secure the costs, and moved for her discharge. The motion was denied, and the court sentenced her to hard labor for the county for ten days, to enforce such payment. The judgment was affirmed by this court on appeal. It is our opinion, that these interpretations of the statutes, rendered seventeen years ago, ought not to be disturbed. They have been accepted by the legislature; the inferior courts, charged with the administration of our Penal Code, have uniformly acted on them; and they have been generally acquiesced in by the bar. — Long's Case, 87 Ala. 46. In reaching this conclusion, we have not been unmindful of the principle, that penal statutes are to be strictly construed. The healthy limitation on this principle is, that an interpretation should never be adopted which would defeat the obvious purpose of the statute, if any other reasonable construction can be given to it. As observed by this court in Thompson v. The State, 20 Ala. 54: “The inartificial manner in which many of our statutes are framed, the inaptness of expression freqeuently used, and the want of perspicuity and precision not unfrequently met with, often require the court to loot less at the letter or words of the statute, than at the context, the subject-matter, the consequences and effects, and the reason and spirit of the law, in endeavoring to arrive at the will of the law-giver.” In that case, a statute was under review which provided that no new road should be opened “ through any inclosure, whilst there is a crop growing on the same.” It was held that the statute did not embrace a crop planted or sowed, after the order of the Commissioners Court establishing the road, although such a case fell within the letter of the statute. Such construction, said the court, would be unreasonable, as it would frustrate the manifest object the legislature had in view, inasmuch as any person could always thwart the action of the court, by always having some sort of crop sowed after its order was made. So, in the ease of The Emily and The Caroline, 9 Wheat. 381, where the statute declared forfeited any vessel “ which shall be fitted out" in the United States for carrying on the slave trade, it was contended that the letter of the statute required that the vessel must be completely fitted and ready for sea, and not merely in process of construction for — 134 — the forbidden purpose. The court rejected this view, holding that it would defeat the purpose of the law, and observed: “ To apply the construction contended for on the part of the claimant, that the fitting or preparation must be complete, and the vessel ready for sea, before she can be seized, would be rendering the law in a great measure nugatory, and enable the offenders to elude its provisions in the most easy manner.” Many other cases could be cited to illustrate the principle in question, which is thus stated by a recent writer: “ Where the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, though in so doing the exact letter of the law be sacrificed, or though the construction be, indeed, contrary to the letter.” And this rule, he concludes, “holds good even in the construction of criminal statutes.” — Endlich on Statutes, § 295. The offense of carrying on a lottery is punishable only by a fine. No independent term of imprisonment is affixed, as a separate penalty, as in many other cases, additional to the fine. For myself I see no reason why a convicted defendant should not be allowed to pay his fine, if he choose, and still work out the costs. This would be a humane construction of the statute favorable to human liberty. But the payment of the fine certainly can go no fp.rth.er than relief from imprisonment for its satisfaction. It can not satisfy the costs. And, in the absence of the costs being paid, or secured as required by the statute, the plain legislative intent is, that they shall be satisfied by sentence to hard labor for the county. If the present case was before us on direct appeal, we would have the defendant in the attitude of absurdly complaining of prejudicial error in the record, on the ground that he had been merely sentenced to hard labor to pay the costs, and had not, by preliminary judgment, been first sentenced to satisfy a fine which he himself had paid, or to an imprisonment which the law did not authorize as an independent penalty for the offense charged. It is apparent that any other construction of the statutes under consideration than the one above adopted would practically operate to repeal the whole system of hard labor for the counties in its bearing on a large number of offenses — 135 — which, have been so punished uniformly for the past twenty years. We think there is no reasonable doubt as to the constitutionality of the Act of February 8th, 1877 (Acts 1876-77, p. 197-198), which vests in the justices of the peace jurisdiction to try all misdemeanors in the counties designated. This legislative power arises from section 9 of Article I of the present Constitution of 1875. The phrase there used of “other misdemeanors” is not weakened by the previous enumeration of five or six particular misdemeanors. — Anderson v. State, 72 Ala. 187. The application for the writ must be denied.