People Ex Rel. Warfield v. Sutter Street Railway Co.

GRAY, C.

This action is based on section 803 of the Code of Civil Procedure, and was brought to have the franchise of defendant to maintain a street railway on Bush and other streets of San Francisco declared forfeited, and to have defendant adjudged to have usurped a franchise and fined in a sum not exceeding five thousand dollars, as provided in section 809 of the Code of Civil Procedure. The plaintiff had judgment as demanded, and the court imposed a fine on defendant of five thousand dollars. The defendant appealed to this court and the judgment was affirmed.

(People v. Sutter Street Ry. Co.,

117 Cal. 604.) On the going down of the

remittitur

execution was issued against defendant to collect the fine. Defendant tendered the five thousand dollars and costs, but refused to pay interest on the fine, and moved that the execution be quashed or amended by strildng therefrom the portion relating to interest upon said fine. By an order duly entered the court denied the motion, and the appeal before us is from that order.

The only question for determination is, Does the judgment imposing the five thousand dollars fine on defendant come within the provisions of section 1920 of the Civil Code, providing that “interest is payable on judgments recovered in the

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courts of this state at the rate of seven per cent per annum”? We say, without hesitation, that the case is not within the ■section quoted, and no interest on the fine can be recovered. It is true the provisions of law on which the action is based are found in the Code of Civil Procedure, and the action itself takes the form of a civil action, and, as to the procedure therein, it follows the rules prescribed for civil cases, and yet it is plain that the judgment adjudging the defendant to have usurped and unlawfully exercised a franchise and fining it five thousand dollars therefor is clearly penal in its nature, and the same rule as to interest should govern as applies to a judgment in any criminal case. Judgments which are penal in iheir nature, and have for their sole object the punishment of an offender, do not come within either the letter or spirit of said section. The section provides only for interest on “judgments recovered.” The word “recovered” implies that the judgment referred to is one obtained by way of compensation and in return for an injury or a debt. The defendant in this ease was not fined for the purpose of compensating the state, nor for the purpose of returning to it anything that had ever theretofore belonged to it. The judgment of fine was solely for the purpose of punishment, and was not based on any evidence of loss or damage, but rested (within the limit prescribed by the statute) solely within the discretion of the court. It would, we think, be more proper to speak of it as a sentence or judgment imposed on the defendant than to say it was a judgment recovered against him.