In Re Oswald

[348]

CONREY, P. J.

The petitioner is in custody pursuant to a judgment of conviction of a mis'demeanor in that, after having become indebted to a laborer for wages amounting to three hundred dollars, then due and payable, the petitioner, although having the ability to pay, did wilfully and unlawfully refuse, neglect, and omit to pay the same, and did then and there wilfully and unlawfully and falsely deny the amount and validity of said indebtedness, with the intent to secure a discount for himself, and with the intent to annoy, harass, oppress, hinder, delay, and defraud his employee of said sum and indebtedness.

The offense charged was an act in violation of the provisions of section 6 of an act to regulate the payment of wages, etc., approved May 6, 1919 (Stats. 1919, p. 294; Deering’s Gen. Laws, 1923 ed., Act 4743).

The sole point relied upon by petitioner is stated in his contention that the statute is unconstitutional, in that it provides for imprisonment for debt, contrary to the provisions of article I, section 15, of the constitution of California, which reads as follows: “No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud, nor in civil actions for torts, except in cases of wilful injury to person or property; and no person shall be imprisoned for a militia fine in time of peace.”

Prior to said act of 1919 the legislature had adopted “an act providing for the time of payment of wages,” which purported to make it a misdemeanor for an employer to violate the provisions of section 1 of the act, which section provided that the earned and unpaid wages of an employee when discharged should become due and payable immediately, and also provided that when an employee, not having a contract for a definite period, quit or resigned his employment, his wages earned and unpaid should become due and payable five days thereafter. (Stats. 1911, pp. 1268, 1269.) In the case of

In re

Crane, 26 Cal. App. 22 [145 Pac. 733], it was held that the act was unconstitutional, in that it in effect permitted imprisonment on mesne process for debt. The court declared that under the constitutional provision, which we have quoted, imprisonment for debt is prohibited in this state except in cases “where it is made to appear that the indebtedness was fraudulently contracted,