Ex parte Abbott

Beatty, C. J. Petitioner was duly convicted in the superior court of Los Angeles of a contempt of its authority, and sentenced to pay a fine of four hundred dollars, and in default of payment, to be imprisoned in satisfaction of the fine one day for every two dollars of the fine unpaid. In pursuance of said judgment, he has been committed to and is imprisoned in the county jail. He asks to be discharged, upon the ground that since the recent amendment of section 1205 of the Penal Code (Stats. 1891, p. 52),the superior courts have no power in contempt cases to imprison the defendant in satisfaction of a fine for a longer period than five days.

The whole question to be decided is, whether this amendment to the Penal Code applies to cases of contempt.

In my opinion, it does not. Section 1205 of the Penal Code, since the amendment referred to, is, as it was before, to be read in connection with section 11 of the same code, which expressly declares that “ this code does not affect any power conferred by law upon any [334]. . . . tribunal, or officer, to impose or inflict punishment for a contempt.”

The power to punish for contempt of court, and its limitations, must therefore be sought elsewhere than in the Penal Code, and they are found in the Code of Civil Procedure, sections 1209 et seq. The limit of punishment there prescribed is a fine not exceeding five hundred dollars, or imprisonment not exceeding five days, or both. (Code Civ. Proc., sec. 1218.) The power conferred by this section is not affected by any of the provisions of the Penal Code. In Ex parte Crittenden, 62 Cal. 535, it was held that the court imposing a fine for contempt has the power to make and enforce a judgment such as that in question here, and that, as I understand the decision, without reference to or aid from section 1205, or any other provision of the Penal Code. That decision has never been overruled or questioned, to my knowledge, and remains the law by which I must be bound in deciding this application.

The prisoner is remanded.