under the provisions of section 1205 he cannot be imprisoned at all.

Without considering any of the previous decisions of the court, and treating the matter as a new one for the construction of the code sections bearing upon the subject, it would seem clear that the case is controlled by section 1446, dealing with proceedings in a justice's court.

It may be well at this juncture to call attention to some of the confusion resulting from previous decisions and then to attempt to reach a conclusion as to the proper disposition of the case at bar. In Ex parte Kelly, 28 Cal. 414, it was held that imprisonment for the nonpayment of a five thousand dollar fine might extend to two thousand five hundred days, although the term of imprisonment for the same offense was a much less time. The court reached its conclusion upon the ground that the imprisonment for nonpayment of fine was merely a method of enforcing the payment of the fine. In that connection it was said:

"The mere fact that by its operation the defendant may be imprisoned in the County Jail, by way of enforcing payment or satisfaction of his fine, for a longer period than he could be lawfully imprisoned in the State Prison by way of punishment, is entitled to no weight. The latter imprisonment is the punishment or a part of it; but the former is no part of the punishment per se, but is merely one of the modes by which the law enforces the satisfaction of the fine which is in itself the punishment or a part of it. The punishment fixed by the statute is imprisonment in the State Prison, or fine, or both; all beyond is mere mode and manner of enforcement. The first is to be satisfied by serving out the prescribed term in the State Prison, and in that way only; but the latter may be satisfied in either of three ways, by voluntary payment of the amount of the fine, or by its collection under execution as in the case of a judgment in a civil action (Crim. Prac., sec. 461); or by imprisonment in the County Jail not exceeding one day for every two dollars of the fine. The alleged incongruity is apparent only when the mere mode and manner of enforcing the punishment is confounded with the punishment itself and regarded as a part of it, but it wholly disappears when the obvious distinction between the two is kept in view. . . .""

This was but an elaboration of the same conclusion expressed in People v. Markham, 7 Cal. 208, 209, where it was said:

"The act of 1855 must be construed with reference to the section above quoted, and as there is no conflict between them, both must stand. But it is said, this will be virtually convicting a man under one law, and punishing him by the provisions of another. The answer to this is, that the imprisonment is not a punishment, but a means of enforcing a payment of the fine, and, even if it should be regarded as a punishment, it would make no difference, as the provisions of this law must be regulated by those of the general act on the same subject, inasmuch as there is no contradiction. . . .

Both of these decisions were based upon section 460 of the Criminal Practice Act of 1851 (Stats. 1851, p. 263), as follows: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which shall not exceed ten days for every hundred dollars of the fine, or in that proportion. This section of the Practice Act was amended in 1857 (Stats. 1857, p. 164) to read as follows: "A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every two dollars of the fine, or in that proportion." It was under this latter amendment that the decision of Ex parte Kelly, supra, was rendered, sustaining a commitment which for nonpayment of fine might extend to two thousand five hundred days, although the term of imprisonment fixed for the offense of which the petitioner was convicted was two years' imprisonment.

Section 1446 of the Penal Code originally appeared in the Criminal Practice Act as section 626, contained in part V of that act, "Of Proceedings in Justices', Recorders', and Mayors' Courts." The section then read as follows: "A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be paid or satisfied."

In 1857 (Stats. 1857, c. 126, p. 151) the legislature passed a statute concerning persons under sentence of imprisonment wherein it authorized boards of supervisors of each

county to cause persons in the county jail under sentence of imprisonment to labor upon public or private work. This statute contained the following provision: "Sec. 2. When a person shall be imprisoned for nonpayment of a fine, or until a fine be paid, the imprisonment may extend to, but shall not exceed one day for every two dollars of the fine, and the costs that may be due from the person imprisoned, in the prosecution in which the fine was adjudged."

Section 1446 of the Penal Code as originally enacted read as follows: "A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied, in the proportion of one day's imprisonment for every two dollars of the fine." This was amended in 187374 (Stats. 1873-74, p. 455) to read: "be satisfied, in the proportion of one day's imprisonment for every dollar of the fine." This section has not since been amended unless by implication.

Section 1205 of the Penal Code was also amended in 1873-74 (Stats. 1873-74, p. 455) so that the imprisonment could not exceed one day for each dollar of the fine. These two sections remained the same until 1891, when section 1205 was amended in its present form, fixing the imprisonment at one day for each two dollars of the fine and providing that the term of imprisonment could not exceed the term "for which the defendant might be sentenced to imprisonment for the offense of which he has been convicted."

In the decisions rendered on habeas corpus the court has frequently used sections 1446 and 1205 interchangeably and without reference to the fact that one applied to the superior court and the other to the justices' or recorders' courts.

For instance, in Ex parte Ellis, 54 Cal. 204, the petitioner had been committed by a justice of the peace for nonpayment of fine. In passing upon the case the court said that the judgment conformed to the provisions of section 1205 of the Penal Code. Inasmuch as it also conformed to section 1446 of the Penal Code, relating to justices' courts, the erroneous reference is immaterial, for between 1873-74 and 1891 the two sections were practically identical, both having been amended by the same act of the legislature (Amendments to Pen. Code, 1873-74, p. 455).

The cases of Ex parte Ellis, 54 Cal. 204, Ex parte Chin Yan, 60 Cal. 78, and Ex parte Baldwin, 60 Cal. 432, all dealt with imprisonment for nonpayment of fine under judgments rendered by justices of the peace or police court judges. Notwithstanding that fact, in Ex parte Baldwin, supra, the court distinguished that case from Ex parte Ellis, supra, and Ex parte Chin Yan, supra, upon the ground that the former were judgments rendered under section 1205 of the Penal Code. The question involved there is of no importance here, but these decisions illustrate the confusion resulting from the failure to apply these two sections to the judgments of the courts to which they were respectively applicable.

In the case of Ex parte Miller, 82 Cal. 454 [22 Pac 1113], the petitioner was convicted of a misdemeanor for the violation of an ordinance which only authorized the imposition of a fine. It was therefore claimed that the judgment imprisoning the petitioner for the nonpayment of fine was not valid. That matter was disposed of as follows: "But the offense for which the petitioner was convicted was a misdemeanor, and the code provides for such imprisonment as a means of enforcing the fine." The principle enunciated in Ex parte Kelly, supra, that the imprisonment for nonpayment of fine is merely a method of enforcing the payment of the fine is thus again declared.

In Ex parte Arras, 78 Cal. 304 [20 Pac. 683], it was held that a judgment for imprisonment in the state prison for the nonpayment of a fine was void, the court intimating that the imprisonment should be in the county jail. In Ex parte Wadleigh, 82 Cal. 518 [23 Pac. 190], this view was confirmed. Justice McFarland, however, in a concurring opinion, expressed a doubt as to whether or not the term of imprisonment for nonpayment of a fine could exceed the term of imprisonment provided for the particular offense. Justice Patterson, who concurred in this view, wrote an opinion in the matter of In re Mulholland, 97 Cal. 527 [32 Pac. 568], in which he held that notwithstanding the amendment of section 1205 of the Penal Code in 1891 changing the rate of imprisonment to two dollars per day instead of one dollar per day, that section 1446 of the Penal Code still controlled in justices' and police courts and that the imprisonment in such courts under section.

1446 of the Penal Code could be at the rate of one dollar for each day, and a judgment imposing an imprisonment at the rate of one dollar per day for nonpayment of a fine of fifty dollars was sustained by him. It is important to notice that although this decision is recorded by the reporter as an application to the supreme court for relief upon habeas corpus, that the opinion is that of Justice Patterson alone, as is made evident by an inspection of the original opinion now on file at Sacramento. It is therefore only entitled to the weight of his individual opinion.

In Ex parte Casey, 85 Cal. 36 [24 Pac. 599], we have also the opinion of a single justice on habeas corpus. Mr. Justice Fox expressed the opinion that the term of imprisonment for nonpayment of a fine under section 1446 of the Penal Code might exceed the time fixed as the term of imprisonment for the offense, basing his decision in part upon Ex parte Kelly, supra, and distinguishing the cases of Ex parte Wadleigh, supra, and Ex parte Rosenheim, 83 Cal. 388 [23 Pac. 372], and Ex parte Arras, supra.

The case of Ex parte Erdman, 88 Cal. 579 [26 Pac. 372], is confidently relied upon by the petitioner as decisive of the question involved on his application for relief. This was an opinion by the eourt in bank. The petitioner had been sentenced to pay a fine of five hundred dollars and in default of payment to be imprisoned in the county jail at the rate of one day for each dollar until the fine be satisfied. The maximum term of imprisonment for the offense was not exceeding three months. The prisoner contended that he could not be imprisoned for more than three months for the nonpayment of fine, and having been so imprisoned he sought relief. The court there stated: "The question has been presented to us heretofore, when there was some difference of opinion in regard to it. As the legislature, at its recent session, amended said section 1205 so as to expressly provide that imprisonment to enforce a fine must not extend, in any case, beyond the term for which the defendant might be sentenced to imprisonment. for the offense of which he has been convicted,' we think that former doubts on the subject should, in justice, be resolved in favor of the petitioner." This conclusion is reached by the erroneous assumption that the prisoner was