Sawyer v. Barbour
| Decision Date | 06 July 1956 |
| Citation | 300 P.2d 187,142 Cal.App.2d 827 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Thomas B. SAWYER, Plaintiff and Appellant, v. George J. BARBOUR, individually, and as Clerk of the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, H. L. Byram, County Treasurer, County of Los Angeles, State of California, and Charles G. Johnson, Treasurer of the State of California, Defendants and Respondents. Civ. 21407. |
Thomas B. Sawyer, in pro. per.
Harold W. Kennedy, County Counsel, Wilcox R. Stoddard, Deputy County Counsel, Los Angeles, Edmund G. Brown, Atty. Gen., and Martin M. Ostrow, Deputy Atty. Gen., for respondents.
On this appeal plaintiff challenges the constitutionality of section 773 of the Vehicle Code which, before its amendment in 1955, read:
'To reimburse the General Fund for amounts appropriated therefrom for driver training pursuant to Section 5153.6 of the Education Code, 1 on and after January 1, 1954, there shall be levied a penalty assessment on all offenses involving a violation of a section of this code or of a city or county ordinance, relating to the operation of motor vehicles, except offenses relating to parking or registration, in the following amounts:
'(1) Jail sentence without fine .....$1
'(2) Where a fine is imposed .....$1 for each $20 of fine, or fraction thereof.
'(3) If sentence is suspended .....$1 if jail only, otherwise based on the amount of the fine levied, as in subsection (2).
'(4) If bail is forfeited .....$1 for each $20 of bail, or fraction thereof.
'(5) Where multiple offenses are involved ..... The penalty assessment shall be based on the total fine or bail for all offenses, or $1 for each jail sentence.
'When a fine is suspended, in whole or in part, the penalty assessment shall be reduced in proportion to the suspension.
'When any deposit of bail is made for an offense to which this section applies, the person making such deposit shall also deposit a sufficient amount to include the penalty assessment prescribed in this section for forfeited bail. If bail is forfeited, the amount of such penalty assessment shall be transmitted by the clerk of the court to the county treasury and thence to the State Treasury pursuant to this section.
2
On January 22, 1954 plaintiff was charged with having violated section 577(a) of the Vehicle Code, failing to stop at a signposted crosswalk, and section 250(a), driving without a license. He pleaded not guilty. Bail was set at$5 and the clerk guilty. Bail was set at $5 and the clerk section 773, which plaintiff paid under protest. The suit is to recover the $1. Judgment was for defendants, from which plaintiff appeals.
Plaintiff's claim is that section 773 contravenes these provisions of the Constitution: article I, § 6, prohibiting excessive bail and fines; article I, § 11, providing that all laws of a general nature shall have a uniform operation; article I, § 21, providing that no citizen or class of citizens shall 'be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens'; and article IV, § 25, prohibiting special laws in the following cases: regulating the practice of courts of justice (subd. Third), for the assessment or collection of taxes (subd. Tenth), in all other cases where a general law can be made applicable (subd. Thirty-third).
Our duty is, of course, if possible, to so construe the statute as to uphold its constitutionality: to harmonize the statute with the Constitution. Every presumption is in favor of its validity.
It is first asserted in support of the constitutionality of section 773 that the penalty assessment constitutes bail. We think not. The sole purpose of bail in criminal cases is to ensure the personal attendance of the defendant on the court at all times when his attendance may be lawfully required. Ex Parte Duncan, 54 Cal. 75, 77; Black's Law Dict., 2d ed. There should be no suggestion of revenue to the government, nor punishment to the surety. People v. Calvert, 129 Cal.App.2d 693, 698, 277 P.2d 834; County of Los Angeles v. Maga, 97 Cal.App. 688, 692, 276 P. 352; General Casualty Co. v. Justice's Court, 41 Cal.App.2d 784, 788, 107 P.2d 663.
Various connotations have been accorded the term 'bail.' Strictly speaking, bail is the person in whose custody the defendant is placed when released from jail and who acts as surety for the defendant's later appearance in court. The term is also used to refer to the undertaking by the surety into whose custody the defendant is placed that he will produce the defendant in court at a stated time and place. Pen.Code, § 1269; 7 Cal.Jur.2d 541, § 2. The popular meaning of 'bail' is simply that it is '[t]he security given for the due appearance of a prisoner in order to obtain his release from imprisonment.' (Webster's New Inter. Dict., 2d ed.) When used in this sense, bail can mean either cash or bond. The courts of this state recognize that bail may have this broad meaning. In re McDonough, 27 Cal.App.2d 155, 162, 80 P.2d 485; 7 Cal.Jur.2d 542, § 2; Pen.Code, §§ 1295-1298, 1458; Vehicle Code, §§ 737.1, 739. See Rodman v. Superior Court, 13 Cal.2d 262, 267, 89 P.2d 109.
Sections 737.5, 738, and 739 of the Vehicle Code state the law pertaining to admitting to bail a defendant who has violated that code. The first two sections merely say that the defendant shall be released on bail. Section 739, subdivision e, states that when a person is arrested for a misdemeanor violation of the Vehicle Code or for a violation of local ordinances relating to traffic offenses, the magistrate, on the filing of a duplicate copy of a notice to appear, (See Pen.Code, § 1295.)
Section 737.2 of the Vehicle Code authorizes preparation by the magistrates in each county of a schedule of the amount of bail to be set for the release of prisoners charged with misdemeanor violations of the Vehicle Code when taken before clerks of magistrates and jail custodians. 3 Section 737.1 says that the clerks of magistrates and jail custodians 'shall admit him [a defendant] to bail in accordance with a schedule, fixed as provided in Section 737.2.' No mention is made in these two sections that the schedule of bail is to include a penalty assessment. The procedure followed is to determine from the schedule how much bail the arrested person must post and then to add the penalty assessment. The statute says the person making a deposit of bail 'shall also deposit' the penalty assessment. The total sum deposited includes the bail and the penalty assessment, but the bail does not include the penalty assessment. The penalty assessment is in addition to the bail; it does not constitute, and is not included in, the deposit of bail.
Plaintiff asserts the penalty assessment is a tax; defendants, that it is a fine. We have concluded it is a fine. A fine is a pecuniary punishment imposed on a person convicted of a criminal offense. People ex rel. Warfield v. Sutter Street Ry. Co., 129 Cal. 545, 548, 62 P. 104; Petersen v. Civil Service Board, 67 Cal.App. 70, 75, 227 P. 238. A penalty is, at times, a punishment for the performance of an unlawful act. County of San Luis Obispo v. Hendricks, 71 Cal. 242, 245, 11 P. 682. Legislatures frequently use the term 'fine' and the term 'penalty' synonymously. Weideman v. State, 55 Minn. 183, 56 N.W. 688, 689; United States v. The Strathairly, 124 U.S. 558, 8 S.Ct. 609, 31 L.Ed. 580, 583; United States v. Nash, D.C., 111 F. 525, 527-528; United States v. Birmingham Trust & Savings Co., 5 Cir., 258 F. 562, 564; State v. Galveston, H. & S. A. Ry. Co., 100 Tex. 153, 97 S.W. 71, 78; State v. Dickens, 66 Ariz. 86, 183 P.2d 148, 152; Hanks v. Shreveport Yellow Cabs, La.App., 187 So. 817, 819; McHugh v. Placid Oil Co., 206 La. 511, 19 So.2d 221; State v. Rose, 78 Kan. 600, 97 P. 788, 789; State v. Liggett & Myers Tobacco Co., 171 S.C. 511, 172 S.E. 857, 865; 36 C.J.S., Fines, § 1, p. 781; Colo.Rev.Stat.1953, c. 13, art. 4, § 132(5). The term 'penalty' in its broadest sense includes all punishment of whatever kind, and in the broad sense it is a generic term which includes fines as well as all other kinds of punishments. 36 C.J.S., Fines, § 1, p. 781.
A statute of North Carolina provided that 'any person convicted pursuant to this section [unlawful parking] shall be subject to a penalty of $1.00.' G.S.N.C. § 20-162.1. In State v. Rumfelt, 241 N.C. 375, 85 S.E.2d 398, 400, the court held:
'When we consider the words 'fine' and 'penalty' as used in G.S. § 20-176, and the word 'penalty' as used in G.S. § 20-162.1, it is clear that the General Assembly considered and used the word 'penalty' in G.S. § 20-162.1 as equivalent to the word 'fine', and imposed the payment of $1 for a violation of its criminal law. This $1 was exacted of the defendant who was found guilty by a jury of a misdemeanor.
'The word 'penalty' has many different shades of meaning. In Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 227, 36 L.Ed. 1123, it is said: 'In the municipal law of England and America, the words 'penal' and 'penalty' have...
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