Ex parte Green

Sharpstein, J. The return of the city marshal of the city of Pomona shows that he holds the petitioner in custody in the city jail of said city under and by virtue of a commitment issued out of the recorder’s court of said city, which recites that petitioner was convicted in said court of the crime of misdemeanor committed in said city, and upon such conviction said court ordered and adjudged that for said offense petitioner be imprisoned in the city jail of said city of Pomona for a period of ten days and fined $150, and that in default of the payment of said fine he be imprisoned in said city jail in the proportion of one day’s imprisonment for each and every two dollars of said fine until the said fine be wholly satisfied, not exceeding seventy-five days, and that he be discharged on payment of such proportion of said fine as shall not have been satisfied by imprisonment at the rate prescribed. Then follows the command to said marshal to take and imprison petitioner in said jail ten days, and also in the proportion of one day’s imprisonment for each and every two dollars of the fine not otherwise satisfied, not exceeding seventy-five days, and to discharge petitioner upon payment into court of such remaining portion of said fine as shall not have been satisfied by imprisonment at the rate above prescribed.

The misdemeanor of which petitioner was convicted consisted of a violation of section 1 of ordinance 89 of [389]said city, which provides, among other things, that “ every person convicted of violating this section of this ordinance shall be punished by imprisonment in the city jail of the city of Pomona for ten days and by fine of $150 (and the judgment of fine shall direct that in default of payment of such fine, or any part thereof, defendant shall be imprisoned in the jail of the city of Pomona until the fine be satisfied in the proportion of one day's imprisonment for every two dollars of such fine remaining unpaid).”

If that provision of the ordinance be valid, the judgment, commitment, and imprisonment of petitioner are legal beyond any question. And the contention of petitioner’s counsel is, that the ordinance, so far as it imposes any imprisonment for a failure to pay a fine, is invalid.

All the powers of a corporation are derived from the law and its charter, and it cannot enlarge, diminish, or vary its powers by ordinance or by-law. The city of Pomona derives its powers from an act to provide for the organization, incorporation, and government of municipal corporations, approved March 13,1883, under which that city is incorporated as a city of the fifth class. Power is conferred by that act upon the board of trustees of said city “to pass ordinances, not in conflict with the constitution and laws of the state or of the United States; to impose fines, and penalties, and forfeitures for any and all violations of ordinances; and for any breach or violation of any ordinance, to fix the penalty by fine or imprisonment, or both; but no such fine shall exceed three hundred dollars, nor the term of such imprisonment exceed three months; to do and perform any and all other acts and things necessary and proper to carry out the provisions of this chapter, and to exact and impose within the limits of such city all other local, police, sanitary, and other regulations as do not conflict with general laws.”