
    PROSECUTION FOR. BARBERING ON SUNDAY.
    [Circuit Court of Hamilton County.]
    In re J. B. Stanfeal, Ex Parte.
    Decided, May 11, 1907.
    
      Criminal Law — Constitutionality of Section 7033-1 — Making it a Misdemeanor to Barber on Sunday — -Habeas Corpus — Error—Amendment of Mayor’s Mittimus.
    
    1. Failure to provide maximum penalty does not render unconstitutional Section 7033-1, making barbering on Sunday a misdemeanor.
    2. The remedy of one committed for a misdemeanor, and denied the right to secure payment of the fine and costs imposed, is in a proceeding in error and not by habeas corpus.
    3. It is error on habeas corpus to direct a mayor to amend his mittimus by providing that a fine and costs may be secured to be paid.
    Gieeen, J.; Swing, J., and Smith, J., concur.
    J. B. Stanfeal was convicted under Section 7033-1, Revised Statutes, of barbering on Sunday, and sentenced to pay a fine of fifteen dollars and costs. It is urged that by the commitment he is denied the right to secure the fine and costs to be paid, as provided by Section 1536-793, Revised Statutes. While it is true that this omission maltes the penalty more oppressive than is warranted by statute, yet it is only an irregularity which may be corrected by proceedings in error, but not by habeas corptis. Ex parle Joseph Van Hagan, 26 O. S., 426.
    Section. 7033-1, Revised Statutes, is not unconstitutional and void, because of the failure to provide therein a maximum penalty. The power of the court in administering the law is limited by Section 9, Article I, of the Constitution of the state. Frise v. Slate, 23 Fla., 267; In re Yell, 107 Mich., 228.
    Where a person is convicted under Section 7033-1, Revised Statutes, and ordered to be committed until the fine imposed and costs taxed are paid or he be otherwise discharged according to law, it is not error on habeas corpus to direct the mayor issuing the process to amend the mittimus by providing that the fine and costs may be secured to.be paid. The People, ex rel, v. Killy, 97 N. Y., 212; In re Charles Harris, 68 Vt., 243.
    Judgment affirmed.
    
      Cha/rles F. Williams, for plaintiff in error.
    
      Bales c§ Meyer, contra.
    
     