Ex parte Arras

Works, J. This is an application for the discharge of the prisoner, under a writ of habeas corpus, from the state prison at San Quentin. The petition alleges that the petitioner “is detained, confined, restrained, and imprisoned by virtue of a judgment and commitment, which judgment and commitment attempt to imprison him for two years in said prison, and to impose a large fine, and order his further imprisonment in said prison in case he do not pay said fine for a long period of time, to wit, for one day for each dollar of said fine not paid; that the two years’ imprisonment ordered by said judgment and commitment have, by virtue of the credits accorded to him by law, and which have not been taken away from him, expired, and that he is now held and imprisoned in said prison at hard labor solely for the purpose of collecting such fine.”

The warden of the prison makes return that he is [305]entitled to the custody of the petitioner, as such warden, by virtue of a judgment of conviction and commitment of said petitioner to said prison by the superior court of Merced County. The judgment and commitment are filed with and made part of the return. That part of the judgment, material to the question raised here, is, that the petitioner “be imprisoned in the state prison of the state of California at San Quentin for the term of two years, as a punishment for said crime, and that in addition thereto he pay a fine of two thousand dollars, and that he be imprisoned in the said state prison of said state until such fine be satisfied, said imprisonment not to exceed one day for each two dollars of such fine, and on the payment of such portion of said fine as shall not have been satisfied by imprisonment, at the rate prescribed, that is, one day for each two dollars thereof, that he be discharged from custody on account of said fine.”

The return does not controvert the facts alleged in the petition, that the petitioner has served the full term of imprisonment adjudged as a punishment, and that he is being held and imprisoned at hard labor solely for the purpose of collecting such fine.

It is claimed by counsel for the petitioner that the judgment, so far as it authorizes the imprisonment of the petitioner in the state prison until payment of the fine, is void:—

1. Because there is no law authorizing imprisonment in the state prison for said purpose.

2. Because it imposes hard labor as a part of the penalty in case the fine is not paid.