#### The People ex rel. Adelbert Langworthy, Relator, *v.*Joseph E. Hazard, Sheriff of Cattaraugus County, Respondent.

(Supreme Court, Erie Special Term,

May, 1898.)

Liquor Tax Law — Imprisonment cannot be directed as an alternative for the nonpayment of a fine

A person who has been convicted under the Liquor Tax Law cannot be imprisoned as a condition for the ¿nonpayment of a fine imposed upon him by the court, and when confined under a sentence of such a tenor is entitled to be discharged from imprisonment.

*478Proceedings by *habeas corpus*to discharge the defendant from the custody of the” sheriff of Cattaraugus county.

D. E. Powell (W. G. Laidlaw, of counsel), for relator.

Joseph H. Congdon, district attorney, for respondent.

Titus, J.

This is a proceeding, by *habeas corpus,*to-discharge the defendant from the custody of the sheriff of Cattaraugus county.

On the 14th day of March, last, in the County Court of Cattaraugus county, Adelbert Langworthy was convicted of the crime of selling liquor in quantities less than five gallons at a time, without having paid the tax and posted the liquor tax certificate. On the. 21st day of March, the court sentenced the defendant to- pay a fine ’ of $200, and to stand committed to the county jail until paid, not to exceed one day for each dollar imposed as a fine.

The only question raised on the return of the writ was, whether the court had the power, under the law, to- impose a fine, and imprison the defendant for failure to pay the same, under the provisions of the Penal Code.

It does not seem necessary to enter into- a discussion of this quesr tion. The same question was before the Appellate Division of the fourth department, in People ex rel. Bedell v. Kinney, reported in 24 App. Div. at page 309. In that case the writ waa;dismissed, as having been prematurely taken, but Judge Ward, in the opinion (although the court did not pass upon this question), held that !such a sentence was contrary to ¡the provisions of the Liquor Tax Law; that it conferred no power upon the court to impose imprisonment-as a penalty for not paying the fine.

In the case of People v. Stock, 26 App. Div. 564, recently decided by the Appellate 'Division in the second department, the court unanimously held, in a case where the facts are parallel in all particulars to the case under consideration, that the provisions of the Criminal Code providing that a judgment which imposes a fine may also direct the criminal to be imprisoned until the fine is paid, for a term not-exceeding one day for each dollar of the fine, are not applicable to a, conviction under the Liquor Tax ¡Law; that, as the latter statute.covers the whole subject, prescribing the punishment and the manner in which the fine shall be collected, the penalty imposed must be in accordance with that statute, and that in such a case, where the defendant was convicted and fined, and, in the *479alternative, ordered sent to. tire penitentiary not exceeding one day for each dollar imposed as a fine, was void, [to the extent of the imprisonment, and that the defendant was entitled to his discharge.

Under any circumstances I should feel bound to follow these decisions, being parallel to the case under consideration, if I had no personal opinion upon the question, but I am strongly of the opinion that these cases express the true rule of law upon this question, and that a defendant convicted under this statute cannot be imprisoned as a condition for the nonpayment of a fine imposed by the court.

It follows> therefore, that the relator must be discharged from his imprisonment, and it is ordered accordingly.

Ordered accordingly.