— The defendant, Hinton E. Carr, is charged, in one count as the president, and in another as a member, of a banking firm, with receiving from Robert T. Abernathy for deposit three hundred and fifty-five dollars, knowing at the time, or having good cause to believe, that said firm was in a failing or insolvent. condition. The indictment is drawn under an act “to prevent banks, bankers, firms, corporations, or other persons from receiving deposits of bank notes, specie money or other thing of value, when in a failing or insolvent condition,” approved December 12, 1892, which is in the following words :
“Section 1. Beit enacted by the General Assembly of Alabama, That any president, cashier or other officer, by whatever title lie maybe called or known, of any bank, banking firm or corporation engaged in a banking business, or any other person or persons, engaged in said business, or the agent or agents thereof, who shall receive for deposit any hank notes, specie money or other thing of value, knowing 'at the time said deposit is re
“Sec. 2. Be it further enacted, That in all convictions under this act, the .fine shall be paid in lawful money of the United States only, one-half of which shall go to the person who made the deposit.
“Sec. 3. Be it further enacted, That the payment back to the depositor of the bank notes, specie money or other thing of value, deposited, before the conviction hereunder, and the court costs thereof, which may have accumulated, shall be a good and lawful defense to any prosecution under this act.” — Acts 1892-93, pp. 94-5.
By demurrer to the indictment and motion in arrest of judgment, defendant raised the question of .the constitutionality of the foregoing statute, and reserved the court’s ruling, sustaining the indictment and statute, for our consideration.
1. The statute, it is insisted for the appellant, is violative of Art. I, § 21 of the Constitution of the State, which provides : “That no person shall be imprisoned for debt.” It is to be observed in the outset that this provision of the organic law is essentially different from the provisions on this subject in many other State constitutions, in that it contains no exception of “cases of fraud;” and on the same line is essentially different from the constitutions of this State of 1819, 1861 and 1865, in each of which the language is that, “The person of a debtor, where there is not strong presumption of fraud, shall not be detained in prison, after delivering up his estate for the benefit of his creditors, in such manner as shall be prescribed by law.” Const. 1819, Art. I, § 18 ; Const. 1861, Art. I, § 18; Const. 1865, Art. I, § 22. This change, was made in the constitution of 1868, (Art. I, § 22) where the provision assumed its present form. In Ex parte John Hardy, 68 Ala. 303, 318, it ivas held — and we do not understand that there was any division of opinion on this point — that the elimination of the exception as to frauds was a pregnant omission, which left tlie guaranty of immunity from imprisonment to the debtor to apply to all cases of debt,
2. The “imprisonment for debt,” which the framers of constitutions embodying this provision doubtless had most prominently in mind, was imprisonment upon process issuing in civil actions, the object and sole purpose of which was the collection of debts : it was to remove the evils incident to the system of taking the debtor’s person upon a capias ad satisfaciendum that this organic inhibition came primarily to be ordained. But the effect of its ordination has been to establish a public policy much broader in its influence upon legislation and operation upon judicial proceedings than would have sufficed for the eradication of the ills which attended, upon the recovery or attempted recovery of debts by restraint of the debtor’s person. This policy is inimical alike to the incarceration of a debtor as a means of coercing payment and to his punishment by imprisonment-for a failure to pay, at least when such failure results from inability. And hence it is that, -while neither the letter of the inhibition, nor the broader policy which is engendered b}>- it and has come to be a part of it, has any application to criminal judgments for fines and costs, yet it is not within legislative competency to declare the mere non-performance of a contract of indebtedness a misdemeanor and punish the commission thereof by imprisonment, directly or indirectly, for, as said in the notes to State v. Brewer, 37 Am. St. Rep. 753, 758, “as that which is prohibited to be done directly cannot be accomplished by indirection, the legislature can not declare the mere non-performance of a contract to be a misdemeanor, for that would amount to an attempt to legalize imprisonment for debt.” And so in Tennessee there was a statute which made it unlawful for any person, firm, corporation, &c., &c., to refuse to cash any checks or script issued by them if presented to them within thirty days of its date of issuance, and declared that any such person, &c., so refusing to cash in lawful money such checks or script would be guilty of a misdemeanor, and, upon conviction, should be fined not less
The statute involved in the case at bar is a much more flagrant attempt to authorize imprisonment for debt, in our opinion, than "that denounced by the Supreme Court of Tennessee. It -was not the avowed purpose of that act to enforce the' payment of a debt by means of a prosecution under it-. This one cannot be read without conviction that its purpose is to impose imprisonment for debt, and to coerce the payment of a debt by the duress it authorizes. Its requirement that the fine shall be paid only in money, that it shall be double the amount of the deposit, and that one-hálf of it, that is, a sum equal to the amount deposited, shall go to the person who made the deposit, tends, at least, to show that coercion of payment of the debt which the depositary owed the depositor — for the transaction created the relation of debtor and creditor between them — by means of the restraint which the imposition of the fine itself immediately put upon the defendant — not to speak here of his imprisonment preliminary to the trial — and, that failing to enforce payment, by means of imprisonment at hard labor for the payment of the fine and costs, was the
Reversed and rendered.