THOMSEN, District Judge.
This is the second attack which plaintiffs’ counsel have mounted against Article 38, Sections 1 and 4 of the Maryland Code, which provide for commitment to jail for nonpayment of fines and costs.
Article 38 deals with Fines and Forfeitures. Sections 1 and 4 provide in pertinent part:
Ҥ 1. Mode of recovering; * * *
“When any fine or penalty is imposed by any act of Assembly of this State or by any ordinance of any incorporated city or town in this State enacted in pursuance of sufficient authority, for the doing of any act forbidden to be done by such act of Assembly or ordinance, or for omitting to do any act required to be done by such act of Assembly or ordinance, the doing of such act or the omission to do such act shall be deemed to be a criminal offense; * * * If any person shall be adjudged guilty of any such offense by any court having jurisdiction in the premises, he shall be sentenced to the fine or penalty prescribed by such act of Assembly or ordinance and to the costs of his prosecution; and in default of payment thereof he shall be committed to jail until thence discharged by due course of law. * * * ”
Ҥ 4. Confinement for nonpayment.
“Any person who shall or may hereafter be committed to jail on any charge, including contempt of court, by the judgment of any court or by any justice of the peace of this State, for nonpayment of any fine and costs, shall be confined one day for every two dollars of fine and costs but in no event shall be confined more than thirty days for fine and costs amounting to one hundred dollars, nor more than sixty days for fine and costs exceeding one hundred dollars but not more than five hundred dollars nor more than ninety days for fine and costs exceeding five hundred dollars. All periods of confinement imposed under the provisions of this section because of nonpayment of two or more fines and costs shall run concurrently unless it shall be specified by the court [556]*556or justice of the peace that said periods shall run consecutively.”
Section 4 was amended, effective July 1, 1968, to read as set out above. Previously the ratio of days in jail to dollars of unpaid fine and costs had been one day of confinement for each dollar of fine and costs.
The previous action was brought by several persons who had been convicted of violating the curfew imposed during the riots in Baltimore in April 1968, on behalf of themselves and of others similarly situated. They alleged, and the State admitted, that they were indigent and therefore unable to pay their fines. A three-judge court, composed of the same judges who compose the court in this case, held that commitment to jail for nonpayment of fines did not violate plaintiffs’ constitutional rights. Kelly v. Schoonfield, 285 F.Supp. 732, decided May 28, 1968. The Court found, however, based upon an agreement of counsel “that in Baltimore City and the adjacent counties, when a court imposes a jail sentence, whether for a given number of days or a given number of months, it is the practice not to include costs in the commitment; hence, in such cases, no time is served for nonpayment of costs. When a fine is imposed, the costs are usually specified in the commitment and are included in computing the time to be served in default of payment”. 285 F.Supp. at 737. The Court found no justification for that distinction, which appeared to be an invidious discrimination in violation of the equal protection clause, and concluded that under the circumstances of that case the State could not constitutionally include costs in computing the time to be served under Article 38, Section 4.
The present action was filed on July 12, 1968, by six persons who had been convicted of various offenses by the Municipal Court of Baltimore City, and were confined in the Baltimore City Jail for nonpayment of fines and costs. Three of the plaintiffs have now completed their sentences. The other three have been released on bail by a judge of the Supreme Bench of Baltimore City pending the decision of this case.
Plaintiffs are suing on their own behalf and on behalf of all other indigent persons detained by the Warden of the Baltimore City Jail under Article 38, Sections 1 and 4, for nonpayment of fines and/or costs. They claim that those sections are unconstitutional as applied to indigents because they violate the “excessive fines” and “cruel and unusual punishment” provisions of the Eighth Amendment, the “due process” and “equal protection” clauses of the Fourteenth Amendment, and the “involuntary servitude” provision of the Thirteenth Amendment to the Constitution of the United States.
Defendants1 have filed a motion to dismiss on various grounds. The parties have entered into a stipulation of certain facts, and submitted the case after argument. The Court finds, however, that although the stipulated facts are sufficient to enable the Court to decide the issues raised with respect to costs, they are not sufficient to enable the Court to decide at this time the other questions raised.
I.
No Maryland decision discussing costs in criminal cases has been cited or found. The law throughout the country is summarized in 20 Am.Jur.2d (Costs §§ 100, 110), pp. 79, 80, 84.
Ҥ 100. Generally; liability of defendant.
“Costs in criminal prosecutions are unknown at common law; their recovery in any criminal case depends wholly upon statutory provisions therefor. In the absence of such statutory authorization, a court has no power to award costs against a defendant on conviction. Under some statutes the [557]*557defendant may be required to pay the costs of prosecution on conviction. The provision may be limited to cases in which fines are assessed, but frequently extends to all criminal cases. Constitutional objections to such statutory provisions, generally directed at their enforcement by way of imprisonment, have been overruled. But provisions imposing costs on a convicted defendant for items that do not constitute an expense incident to trial and prosecution are unconstitutional.”
“§ 110. Enforcement of judgment for costs — against defendant.
"Under a statute so providing, a judgment for costs against a defendant may be enforced by execution, as in civil cases. In this connection, statutory exemption of property from sale under execution may be held limited to civil cases and not to apply to executions for fines and costs in criminal proceedings.
“In the absence of a statute making the costs a part of the penalty, a defendant may not be imprisoned for nonpayment of costs. Statutes authorizing such imprisonment are generally upheld on the basis that costs in a criminal action are not debts within the meaning of the constitutional prohibition against imprisonment for debt. Moreover, imprisonment for costs incurred in a criminal prosecution is generally considered not to be cruel and unusual punishment.”
As noted in Kelly, costs are not usually specified as part of the penalty in the various sections of Article 27 of the Maryland Code, which deals with Crimes and Punishment.2 On the other hand, Article 38, Section 1, quoted above, provides that when a person is found guilty of any
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THOMSEN, District Judge.
This is the second attack which plaintiffs’ counsel have mounted against Article 38, Sections 1 and 4 of the Maryland Code, which provide for commitment to jail for nonpayment of fines and costs.
Article 38 deals with Fines and Forfeitures. Sections 1 and 4 provide in pertinent part:
Ҥ 1. Mode of recovering; * * *
“When any fine or penalty is imposed by any act of Assembly of this State or by any ordinance of any incorporated city or town in this State enacted in pursuance of sufficient authority, for the doing of any act forbidden to be done by such act of Assembly or ordinance, or for omitting to do any act required to be done by such act of Assembly or ordinance, the doing of such act or the omission to do such act shall be deemed to be a criminal offense; * * * If any person shall be adjudged guilty of any such offense by any court having jurisdiction in the premises, he shall be sentenced to the fine or penalty prescribed by such act of Assembly or ordinance and to the costs of his prosecution; and in default of payment thereof he shall be committed to jail until thence discharged by due course of law. * * * ”
Ҥ 4. Confinement for nonpayment.
“Any person who shall or may hereafter be committed to jail on any charge, including contempt of court, by the judgment of any court or by any justice of the peace of this State, for nonpayment of any fine and costs, shall be confined one day for every two dollars of fine and costs but in no event shall be confined more than thirty days for fine and costs amounting to one hundred dollars, nor more than sixty days for fine and costs exceeding one hundred dollars but not more than five hundred dollars nor more than ninety days for fine and costs exceeding five hundred dollars. All periods of confinement imposed under the provisions of this section because of nonpayment of two or more fines and costs shall run concurrently unless it shall be specified by the court [556]*556or justice of the peace that said periods shall run consecutively.”
Section 4 was amended, effective July 1, 1968, to read as set out above. Previously the ratio of days in jail to dollars of unpaid fine and costs had been one day of confinement for each dollar of fine and costs.
The previous action was brought by several persons who had been convicted of violating the curfew imposed during the riots in Baltimore in April 1968, on behalf of themselves and of others similarly situated. They alleged, and the State admitted, that they were indigent and therefore unable to pay their fines. A three-judge court, composed of the same judges who compose the court in this case, held that commitment to jail for nonpayment of fines did not violate plaintiffs’ constitutional rights. Kelly v. Schoonfield, 285 F.Supp. 732, decided May 28, 1968. The Court found, however, based upon an agreement of counsel “that in Baltimore City and the adjacent counties, when a court imposes a jail sentence, whether for a given number of days or a given number of months, it is the practice not to include costs in the commitment; hence, in such cases, no time is served for nonpayment of costs. When a fine is imposed, the costs are usually specified in the commitment and are included in computing the time to be served in default of payment”. 285 F.Supp. at 737. The Court found no justification for that distinction, which appeared to be an invidious discrimination in violation of the equal protection clause, and concluded that under the circumstances of that case the State could not constitutionally include costs in computing the time to be served under Article 38, Section 4.
The present action was filed on July 12, 1968, by six persons who had been convicted of various offenses by the Municipal Court of Baltimore City, and were confined in the Baltimore City Jail for nonpayment of fines and costs. Three of the plaintiffs have now completed their sentences. The other three have been released on bail by a judge of the Supreme Bench of Baltimore City pending the decision of this case.
Plaintiffs are suing on their own behalf and on behalf of all other indigent persons detained by the Warden of the Baltimore City Jail under Article 38, Sections 1 and 4, for nonpayment of fines and/or costs. They claim that those sections are unconstitutional as applied to indigents because they violate the “excessive fines” and “cruel and unusual punishment” provisions of the Eighth Amendment, the “due process” and “equal protection” clauses of the Fourteenth Amendment, and the “involuntary servitude” provision of the Thirteenth Amendment to the Constitution of the United States.
Defendants1 have filed a motion to dismiss on various grounds. The parties have entered into a stipulation of certain facts, and submitted the case after argument. The Court finds, however, that although the stipulated facts are sufficient to enable the Court to decide the issues raised with respect to costs, they are not sufficient to enable the Court to decide at this time the other questions raised.
I.
No Maryland decision discussing costs in criminal cases has been cited or found. The law throughout the country is summarized in 20 Am.Jur.2d (Costs §§ 100, 110), pp. 79, 80, 84.
Ҥ 100. Generally; liability of defendant.
“Costs in criminal prosecutions are unknown at common law; their recovery in any criminal case depends wholly upon statutory provisions therefor. In the absence of such statutory authorization, a court has no power to award costs against a defendant on conviction. Under some statutes the [557]*557defendant may be required to pay the costs of prosecution on conviction. The provision may be limited to cases in which fines are assessed, but frequently extends to all criminal cases. Constitutional objections to such statutory provisions, generally directed at their enforcement by way of imprisonment, have been overruled. But provisions imposing costs on a convicted defendant for items that do not constitute an expense incident to trial and prosecution are unconstitutional.”
“§ 110. Enforcement of judgment for costs — against defendant.
"Under a statute so providing, a judgment for costs against a defendant may be enforced by execution, as in civil cases. In this connection, statutory exemption of property from sale under execution may be held limited to civil cases and not to apply to executions for fines and costs in criminal proceedings.
“In the absence of a statute making the costs a part of the penalty, a defendant may not be imprisoned for nonpayment of costs. Statutes authorizing such imprisonment are generally upheld on the basis that costs in a criminal action are not debts within the meaning of the constitutional prohibition against imprisonment for debt. Moreover, imprisonment for costs incurred in a criminal prosecution is generally considered not to be cruel and unusual punishment.”
As noted in Kelly, costs are not usually specified as part of the penalty in the various sections of Article 27 of the Maryland Code, which deals with Crimes and Punishment.2 On the other hand, Article 38, Section 1, quoted above, provides that when a person is found guilty of any offense referred to therein, “he shall be sentenced to the fine or penalty prescribed by such act of Assembly or ordinance and to the costs of his prosecution ; and in default of payment thereof he shall be committed * * * Whether Sections 1 and 4 of Article 38 would apply to every statute or whether different provisions in a particular statute would take precedence over the general provision has not been determined by the Maryland courts.
The stipulation in the present case shows that despite the apparent clarity of that provision it is not being applied uniformly, although the present lack of uniformity is different from that found in Kelly.3 That lack of uniformity often creates a serious discrimination; e. g., when a man is sentenced to pay a fine [558]*558of $100 and $5 costs, the inclusion of costs in the calculation prescribed by Article 38, Section 4, increases from 30 days to 52 days the amount of time which must be served.
This Court, therefore, declares that under the stipulated facts in this case the State cannot constitutionally include costs in computing the time to be served under Article 38, Section 4. An injunction to that effect will be issued against the defendant Warden.
II.
This Court held in Kelly that the confinement of indigents, as well as others, for a limited period because of nonpayment of fines does not deny them the equal protection of the laws and does not amount to cruel and unusual punishment.
Although the question of commitment for nonpayment of fines has been more fully developed in the present case than in Kelly, the present record is insufficient to permit the Court to do more now than deny defendants’ motion to dismiss.
The parties have stipulated the type of offense for which each of the named plaintiffs was convicted, but the particular statutes or ordinances violated have not been specified. The Maryland statutes dealing with the limits of confinement for default in payment of fines often overlap.4 The record does not contain the judgments and commitments of any of the plaintiffs, although a form said to be in general use in the Municipal Court was discussed at the hearing.
Counsel for plaintiffs argued at the hearing that when the judges of the Municipal Court of Baltimore City impose fines, they do not consider whether the defendant is indigent and whether the period of confinement prescribed in Article 38, Section 4, would be a reasonable period for that defendant under all the circumstances. Counsel for plaintiffs suggested that the entire matter is handled by the clerk and by the jailer. Counsel for defendants denied this, and plaintiffs offered no evidence to support their contention. Although Article 38, Section 4, does not require the Municipal Court judges to learn whether a defendant is financially able to pay his fine, Section 113(c) of Article 26 and Section 639 of Article 27 enable Municipal Court judges to make appropriate arrangements and conditions, including instalment payments, in the case of a defendant who is found financially unable to pay any or all of his fine at the time of sentencing, and this court cannot and should not assume that they do not do so.
The paucity of facts in the record about the practice of the Municipal Court in this area makes it difficult to handle the matter in a class suit, as plaintiffs would have us do, until the facts are more fully developed.
Nevertheless, some further discussion of the legal questions involved is appropriate.
We adhere to the legal principles upon which we based our decision in Kelly. In the light of the fuller argument presented herein, we restate those principles as follows:
A statute is not unconstitutional merely because it provides that a defendant who has been sentenced to pay a fine shall be committed to jail if he does not pay the fine. A judgment imposed pursuant to such a statute is not unconstitutional merely because the defendant is indigent. United States ex rel. Privitera v. Kross, 239 F.Supp. 118 (S.D.N.Y.1965), aff’d 345 F.2d 533 (2 Cir. 1965), cert. den., 382 U.S. 911, 86 S.Ct. 254, 15 L.Ed.2d 163 (1965). In certain circumstances, however, and for various reasons, a judgment imposed pursuant to such a statute may deny an indigent defendant the equal protection of the laws or violate other rights protected by the Eighth or the Fourteenth Amendment. See, e. g., People v. Saf[559]*559fore, 18 N.Y.2d 101, 271 N.Y.S.2d 972, 218 N.E.2d 686 (1966).
A statute is not unconstitutional merely because it establishes a fixed correlation between the amount of the fine and the number of days to be served in default of payment of the fine. The reasonableness of a fixed correlation may under appropriate circumstances be subject to challenge (a) on the face of the statute, or (b) because of the manner in which it is applied by the courts generally, or (c) because of the manner in which it is applied in a particular case.
Among the factors which may be considered by a court in ruling on a challenge to the constitutionality of such a correlation are: (1) the purpose of the statute, as stated by the legislature or construed by the courts of the State; and (2) whether the default in payment was due to wilfulness or to indigency.
It is argued that the automatic conversion by the statute of $2.00 of fine into one day in jail contravenes the due process clause and makes the act void on its face. The minimum wage scale has been suggested as the proper standard to be applied. But no evidence has been offered in this case to indicate whether the indigent plaintiffs here (or others similarly situated) are employed, ór are receiving unemployment or social security benefits, or are on welfare. It would not be suprising if the actual facts were to show that at the time these crimes were committed some of these plaintiffs and many other indigents confined under this statute were receiving no wages nor other benefits at the time that their crimes were committed.
On the other hand, a fuller record might well convince this Court that the $2.00 figure is constitutionally inadequate. But we are not willing without more facts to adopt the Procrustean approach that the minimum wage scale is the strict measure of the constitutionality of this statute. We cannot assume on the meager record before us that those indigents adversely affected by the statute are employed or employable persons and that the standard of constitutionality is therefore the amount of the minimum wage. At this time, we are not prepared to state flatly that there is no rational basis in fact for the figures adopted by the legislature (presumably after a study of facts not before this Court). Nor do we feel foreclosed from requiring a further hearing merely because both parties have submitted this case on affidavits. Before we would take the step of voiding on. its face or otherwise a statute enacted and recently reconsidered by the Maryland State Legislature, we would wish to have more than assumed facts before us.
A statute which enables or requires a court to fix in each case the number of days to be served in default of payment of a fine avoids many of the problems inherent in statutes which impose fixed ratios. For example, the New York statute involved in United States ex rel. Privitera v. Kross, supra, provided imprisonment for nonpayment of a fine at a rate to be fixed by the judge, which could not exceed one day for every one dollar of the fine. The judge, in fact, fixed the rate in that case at one day for every eight dollars of the fine, no doubt because of the minimum wage law then in effect. The New York law has since been amended, but still permits the judge to tailor the sentence to the individual defendant. See New York Code of Criminal Procedure, Section 470-d.5
[560]*560Defendants’ motion to dismiss the complaint is hereby denied.
Counsel should agree within ten days upon the form of an injunction to give effect to the ruling in section I of this opinion.