17 Cal.4th 396 (1998)

BRENT N. MOSS, Petitioner,
v.
THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; TAMARA S. ORTIZ, Real Party in Interest.

Docket No. S057081.

Supreme Court of California.

February 2, 1998.

*400 COUNSEL

Alan C. Oberstein and Margaret J. Spencer, Public Defenders, Floyd Zagorsky, Chief Assistant Public Defender, Cheryl Thompson and Taylor L. Huff, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Grover Trask, District Attorney, James P. Fullmer and Glen O. Brandel, Deputy District Attorneys, and Michael H. Clepper for Real Party in Interest.

Phillip J. Cline, District Attorney (Tulare) and John S. Higgins, Jr., Deputy District Attorney, as Amici Curiae on behalf of Real Party in Interest.

OPINION

BAXTER, J.

May a parent whose inability to pay court-ordered child support results from a willful failure to seek and obtain employment be adjudged in contempt of court and punished for violation of the order? Concluding that it was bound by this court's decision a century ago in Ex parte Todd (1897) 119 Cal. 57 [50 P. 1071] (Todd), which was recognized as binding precedent in In re Jennings (1982) 133 Cal. App.3d 373 [184 Cal. Rptr. 53] (Jennings), the Court of Appeal reluctantly held that to impose *401 a contempt sanction in those circumstances is beyond the power of the court. It therefore annulled the judgment of contempt in issue in this proceeding. Although not expressly articulated in Todd, which, like Jennings, involved spousal support, the apparent basis for the Todd result was either an assumption that employment sought under even an indirect threat of imprisonment for violation of the support order constituted involuntary servitude or a belief that imposition of a contempt or criminal sanction for failure to pay support constituted imprisonment for debt.

We conclude that there is no constitutional impediment to imposition of contempt sanctions on a parent for violation of a judicial child support order when the parent's financial inability to comply with the order is the result of the parent's willful failure to seek and accept available employment that is commensurate with his or her skills and ability. We shall therefore disapprove Todd insofar as it might be read to apply to child support orders. We also address the burden of proof in these contempt proceedings and conclude that inability to comply with a child support order is an affirmative defense. The alleged contemner must prove inability to comply by a preponderance of the evidence, which was not done here.

We shall affirm the judgment of the Court of Appeal, however. We must do so because, in light of the past understanding of Todd, our holding that a willfully unemployed, nonsupporting parent is subject to contempt sanctions if the parent fails to comply with a child support order might be deemed an unanticipated change in the law, and Tamara Ortiz, the custodial parent, did not carry her burden of proof under the existing law by showing that Brent Moss, the alleged contemner, had the actual financial ability to comply with the order.

I

FACTUAL AND PROCEDURAL BACKGROUND

(1) (See fn. 2.) The "Declaration for Contempt" in this matter,^[1] executed by Tamara S. Ortiz on June 22, 1995, alleged that a judgment of dissolution filed March 17, 1992, ordered Brent N. Moss to pay $241.50 each, or a total of $483 a month support for the two children of the marriage, one-half due on the first and one-half due on the fifteenth day of each month, commencing on January 15, 1992. The order was modified on November 1, 1994, *402 after which $385 was to be paid monthly, with semimonthly payments of $192.50. The declaration alleged that Brent had knowledge of the order and was able to comply with each order when it was disobeyed. No payments were made from July 1, 1994, through June 15, 1995. A total of $5,210 was due and unpaid.

Brent was unemployed when the support order was made. The amount to be paid was based on his ability to earn $1,671 gross income per month.

The declaration alleged 24 contempt counts and the court treated each of the 24 dates on which a payment had not been made as a separate count. The superior court issued an order to show cause on June 17, 1995, directing Brent to appear and show cause why he should not be found guilty of contempt for willful disobedience of the support order.

At the November 7, 1995, hearing on the order to show cause, Tamara testified that she and Brent, her then husband, were present when the support order was made and that he had not paid any support at all since July 1, 1994.

Brent's counsel assumed that Tamara bore the burden of proof on ability to pay support. On cross-examination Tamara testified that Brent did not have a car and at times had no food in his house. She was not aware of him having a job in the past four years, and did not know if he had any money or any ability to pay.

Betty Lou Moss, Brent's mother, testified that she provided Brent with a home. She paid the utilities expenses most times, but on other times he did so. He worked at odd jobs, and she did not know how much he earned from them. Brent often ate at her home. She did not know if he purchased food on his own. When the children were with him, they slept at his house, but he brought them to Betty Moss's home to eat. Betty Moss did not know if Brent ever fed them at his house. She did not remember how long it had been since Brent had a job. He did not discuss jobs with her. He did odd jobs like lawn mowing once in a while, but she did not know how much he earned. When she asked him about getting a job he said he was trying. He did not tell her what he was trying, however.

No other evidence was presented.

Counsel for Brent did not dispute the existence of a valid order for support, his client's knowledge of that order, and possible "willfulness," but argued that there had been no evidence of ability to comply with the support *403 order. He also argued that in a contempt proceeding to enforce a child support order, the citee need only raise the question of ability to comply, at which point the party seeking the contempt sanction had the burden of proving ability to comply beyond a reasonable doubt. In his view, inability to comply had been adequately raised by the evidence and compelling Brent to work under threat of punishment would constitute involuntary servitude.

Tamara's counsel argued that Brent had the burden of proving inability to comply with the order as an affirmative defense and that ability to comply did not require ability to pay the full amount of support ordered.

The court agreed that the burden of proving inability to comply lay with Brent and observed that there had been no evidence whatsoever that Brent was not able to work. The court found that Brent did have the ability to pay something in child support, as the evidence permitted an inference that he was receiving money from some source other than his mother. In partial explanation of that conclusion, the court stated that Brent was well dressed and had to be doing something to buy his own clothes and feed himself when he did not eat at his mother's home. The court also stated that Brent was "a person who could get a job flipping hamburgers at MacDonald's.... I don't know why he couldn't get a job at minimum wage. He's, in my mind, chosen not to." Brent's attorney then conceded that Brent had the ability to work. When asked later if there was a finding of ability to work, however, the court said only that Brent had "the ability to get money. Now, whether you want to say it's the ability to work, which there is no evidence that he can't, or the ability to get money from his mother, which he apparently freely does as he needs to ... I am left with the inference that he has money from another source." The court also expressed the view that permitting a parent who had the ability to work and support the parent's children, but failed to do so, would make a "mockery" of the contempt power.

The court found Brent guilty of 24 counts of contempt,^[2] but delayed imposition of sentence to permit Brent to seek appellate review. The only factual finding set forth in the minute order of November 7, 1995, was that "Respondent has the ability to pay the court ordered support."

After this petition for a writ of mandate was filed, the Court of Appeal noted that no sentence had yet been imposed and held the petition in abeyance pending that action. On March 5, 1996, the superior court imposed *404 a sentence of five days in jail for each of six counts of contempt, and ordered Brent to perform ten hours of community servitude for each of the six counts.^[3] Execution of sentence was stayed to permit Brent to purge himself of contempt by making specified payments, and he was placed on three years' informal probation. At that point the Court of Appeal issued its order to show cause in this mandate proceeding.

Brent's petition for a writ of mandate sought to set aside the contempt judgment on the ground that, although he raised the issue of inability to pay, Tamara presented no evidence that he had any resources with which to pay child support and therefore had the ability to comply with the order. Relying on Todd, supra, 119 Cal. 57, Jennings, supra, 133 Cal. App.3d 373, and In re Brown (1955) 136 Cal. App.2d 40 [288 P.2d 27] (Brown), he also claimed that, while the amount of support fixed by a child support order may be based on ability to earn, a finding of contempt may not be based on ability to earn. The Court of Appeal set aside the contempt judgment, holding that the evidence was not sufficient to prove that Brent had the ability to pay, and because Todd was controlling (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937]), the Court of *405 Appeal reluctantly concluded that he could not be adjudged in contempt based only on ability to earn. The Court of Appeal invited this court to reconsider Todd, at least in the context of child support, and we granted the petition for review of real party in interest for the purpose of doing so.

For the reasons stated below, we conclude that, insofar as Todd may apply to child support obligations, it should be disapproved.^[4] The duty of a parent to support the parent's child or children is a fundamental parental obligation. We are satisfied that there is no constitutional impediment to use of the contempt power to punish a parent who, otherwise lacking monetary ability to pay child support, willfully fails and refuses to seek and accept available employment commensurate with the parent's skills and abilities.

II

TODD, BROWN, AND JENNINGS

(2) This court's opinion in Todd, supra, 119 Cal. 57, is the apparent source of the belief that imposition of a contempt sanction on a parent who willfully disables himself or herself from having the ability to comply with a child support order is constitutionally impermissible. Tamara argues that, regardless of whether Todd was based on the constitutional prohibition of slavery and involuntary servitude or on the proscription of imprisonment for debt, it should be disapproved or overruled. Supported by amicus curiae Appellate Committee of the California District Attorneys Association, she asks the court to reconsider Todd.

The one-page Todd opinion offered no explanation for its holding that the court lacked power to punish a person for failing to seek employment in order to pay spousal support. In Todd the contemner discontinued making court-ordered alimony payments to his ex-wife. After a hearing on an order to show cause re contempt, the court found that the contemner had no money or other means of payment and had not committed a fraud on his creditors by disposing of property. The court also found that the contemner had been allowed a month within which to seek employment so that he could earn money to make the weekly alimony payments, but had made no effort to obtain employment. He was committed to jail until he paid the $200 then due.

This court held: "This order was clearly in excess of the power of the court, which cannot compel a man to seek employment in order to earn *406 money to pay alimony, and punish him for his failure to do so." (Todd, supra, 119 Cal. at p. 58.)

Todd was followed by Brown, supra, 136 Cal. App.2d 40, a case in which the habeas corpus petitioner had been sentenced to a five-day jail term for failure to comply with a judgment ordering him to pay alimony. The affidavit in support of the contempt citation was construed by the Court of Appeal to allege that the contemner had insufficient money to comply due to his being unemployed. The court concluded that there had been a sufficient showing of ability to work, but this was inadequate. "If ability to work in remunerative employment was, in a pertinent legal sense, ability to comply with the mandate of the judgment, and if it had been alleged that petitioner wilfully refused to work for the express purpose of avoiding compliance with his obligations, the affidavit would have been sufficient. But mere ability to work is not the same as ability to pay." (Brown, supra, 136 Cal. App.2d at p. 43.) The court then noted that Todd was still the controlling law, quoting the opinion, but went on to say: "Cases holding that a husband who has no money but has the ability to work may be ordered to pay support money to his wife (Dimon v. Dimon [(1953)] 40 Cal.2d 516 [254 P.2d 528]) are not in point. Also inapplicable is the rule that one may be punished for contempt if he wilfully and voluntarily puts it out of his power to comply with a court mandate. Our courts have never applied the rule to the case of a husband who has no money, but having ability to obtain employment fails or refuses to do so. [¶] As we have stated, the affidavit did not allege that petitioner gave up his employment voluntarily or refused to accept employment that was available." (Id. at pp. 43-44.)

The habeas corpus petitioner in Jennings, supra, 133 Cal. App.3d 373, had been sentenced to 60 days in jail following a finding that he was in contempt of court for failure to pay spousal support and attorney fees. He claimed that, since there was proof that he did not have the ability to pay, the order was in excess of the court's jurisdiction because it imprisoned him for a debt that he could not pay. At the time of the proceedings the petitioner, an architect, was unemployed and had no assets, but the contempt court found that he had the ability to earn $80,000 per year. He had received unrestricted personal loans and unemployment insurance during the period in which alimony payments were due. The contempt court found that he had "willfully and unjustifiably quit working to avoid his financial obligation of spousal support" and had allowed his business interests to depreciate to the point at which they were practically useless. (133 Cal. App.3d at p. 379.) Because the contemner had voluntarily ceased work, the court had made the support order on the basis of his ability to earn, rather than on his current earnings.

The court found with respect to each count that the petitioner had the ability to pay the support obligation in full and had willfully and intentionally failed to do so, and even though he had the ability to employ himself, he *407 had deliberately refused to employ himself so as to be unable to make the payments.

Relying on its understanding of Todd and Brown, the Jennings court held that the contempt order was in excess of the court's jurisdiction because it was based on capacity to earn rather than actual ability to pay. (Jennings, supra, 133 Cal. App.3d at p. 380.) The court recognized that it is permissible to base an order for support on earning capacity rather than actual income when there is evidence of an attempt to avoid family financial responsibilities by refusing to seek employment. It concluded nonetheless that a contempt sanction could not be imposed for failure to comply with the support order. It found in Todd a clear implication that federal and state constitutional provisions barring involuntary servitude were applicable. (Id. at p. 383.) Citing Pollock v. Williams (1944) 322 U.S. 4, 18 [64 S.Ct. 792, 799, 88 L.Ed. 1095], the court found no difference in the imprisonment of the petitioner for failure to employ himself and other constitutionally impermissible practices where, under threat of criminal sanction, a person is compelled to work in order to force that person to pay a debt (133 Cal. App.3d at p. 384), and ultimately held that it was "bound by the holding in Ex parte Todd, supra, 119 Cal. 57 that contempt may not be applied to incarcerate [petitioner] because he is unemployed." (Id. at p. 386.)

III

INVOLUNTARY SERVITUDE

We shall assume, as did the Jennings court, that the Todd holding was based on the constitutional proscriptions of involuntary servitude or imprisonment for debt. We consider each in turn, examining first the circumstances which may constitute involuntary servitude within the meaning of the Thirteenth Amendment of the federal Constitution and article I, section 6 of the California Constitution (article I, section 6).

A. Thirteenth Amendment.

Section 1 of the Thirteenth Amendment of the federal Constitution provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."^[5]

The Thirteenth Amendment, unlike the Fourteenth Amendment, prohibits conduct by private persons as well as governmental entities. It has been *408 construed and applied primarily to circumstances in which one individual sought to compel work by another. In its decisions applying the Thirteenth Amendment, the United States Supreme Court has recognized that many fundamental societal obligations involving compelled labor do not violate the proscription of involuntary servitude. It has never held that employment undertaken to comply with a judicially imposed requirement that a party seek and accept employment when necessary to meet a parent's fundamental obligation to support a child is involuntary servitude.

In those decisions in which a Thirteenth Amendment violation has been found on the basis of involuntary servitude, the court has equated the employment condition to peonage under which a person is bound to the service of a particular employer or master until an obligation to that person is satisfied.^[6] A court order that a parent support a child, compliance with which may require that the parent seek and accept employment, does not bind the parent to any particular employer or form of employment or otherwise affect the freedom of the parent. The parent is free to elect the type of employment and the employer, subject only to an expectation that to the extent necessary to meet the familial support obligation, the employment will be commensurate with the education, training, and abilities of the parent.

*409 Because the Jennings court cited Pollock v. Williams, supra, 322 U.S. 4 (Pollock), as support for its conclusion, and because in that opinion the Supreme Court observed that its past decisions enforcing the Thirteenth Amendment ban on involuntary servitude had been misunderstood and attempted to clarify that area of constitutional law, our exploration of the scope of "involuntary" servitude necessarily begins with Pollock.

Pollock considered a Florida statute that made it a misdemeanor to induce a monetary advance with intent to defraud by a promise to perform labor. The statute also made failure to perform the labor for which money had been obtained prima facie evidence of intent to defraud. The statute was invalidated under both the Thirteenth Amendment and the Antipeonage Act because it compelled involuntary servitude. The court explained the nature of the servitude the Constitution prohibits: "The undoubted aim of the Thirteenth Amendment as implemented by the Antipeonage Act was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. Forced labor in some special circumstances may be consistent with the general basic system of free labor. For example, forced labor has been sustained as a means of punishing crime, and there are duties such as work on highways which society may compel. But in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. When the master can compel, and the laborer cannot escape, the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work. Resulting depression of working conditions and living standards affects not only the laborer under the system but every other with whom his labor comes in competition. Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor. The federal statutory test is a practical inquiry into the utilization of an act as well as its mere form and terms. [¶] Where peonage has existed in the United States it has done so chiefly by virtue of laws like the statute in question." (Pollock, supra, 322 U.S. at pp. 17-18 [64 S.Ct. at p. 799], fns. omitted.)^[7]

The obligation of a parent to support a child, and to become employed if that is necessary to meet the obligation, is in no way comparable or akin to *410 peonage or slavery. It is among the most fundamental obligations recognized by modern society. The duty is not simply one imposed by statute, but "rests on fundamental natural laws and has always been recognized by the courts in the absence of any statute declaring it." (Lewis v. Lewis (1917) 174 Cal. 336, 339 [163 P. 42].) It is an obligation that existed under common law (In re Ricky H. (1970) 2 Cal.3d 513, 520 [86 Cal. Rptr. 76, 468 P.2d 204]) and has long been recognized in a majority of American jurisdictions as not only a moral obligation, but one that is legally enforceable. (Schuele, Origins and Development of the Law of Parental Child Support (1988-1989) 27 J. Fam. L. 807, 814-815.)^[8]

The United States Supreme Court has consistently recognized that the Thirteenth Amendment does not prevent enforced labor as punishment for crime, and does not prevent state or federal governmental entities from compelling the performance of civic duties such as jury service (Hurtado v. United States (1973) 410 U.S. 578, 589 [93 S.Ct. 1157, 1164, 35 L.Ed.2d 508], fn. 11), military service (Selective Draft Law Cases (1918) 245 U.S. 366, 390 [38 S.Ct. 159, 165, 62 L.Ed. 349],^[9] and road work (Butler v. Perry (1916) 240 U.S. 328, 333 [36 S.Ct. 258, 259-260, 60 L.Ed. 672]). A parent's obligation to support a minor child is a social obligation that is no less important than compulsory military service, road building, jury service and other constitutionally permissible enforced labor. Even if the necessity of accepting employment in order to meet this obligation were somehow analogous to those forms of compelled labor, we have no doubt that this form of labor would be recognized as an exception to the ban on involuntary servitude found in the Thirteenth Amendment. It is clear to us, however, that employment undertaken to meet a child support obligation is not analogous to government-controlled labor and does not otherwise create a condition of peonage or slavery. Unlike those recognized exceptions to the Thirteenth Amendment in which labor is compulsory, undertaking employment because an income is necessary to enable a parent to comply with a valid court order to support a child does not impose on the parent any government control over the type of employment, the employer for whom the parent's labor will be performed, or any other aspect of the parent's individual freedom that might be associated with peonage or slavery.

The Supreme Court's construction and application of the "involuntary servitude" aspect of the Thirteenth Amendment has not changed since the *411 Pollock decision. Involuntary servitude is found only when a person is held to labor under conditions akin to peonage or slavery. The issue arose most recently in United States v. Kozminski (1988) 487 U.S. 931 [108 S.Ct. 2751, 101 L.Ed.2d 788], in which the validity of convictions for violation of 18 United States Code sections 241 and 1584 was in issue. Those statutes respectively prohibit any conspiracy to deny rights secured by the United States Constitution, which include the Thirteenth Amendment right to be free from involuntary servitude, and willfully holding another person in involuntary servitude. The court was called upon to determine the meaning of involuntary servitude under the statutes.

The Supreme Court first acknowledged that both statutes were enacted under Congress's power to enforce the Thirteenth Amendment. Because 18 United States Code section 241 prohibits interference with rights guaranteed by the Thirteenth Amendment, the court was required to look to the scope of that amendment's prohibition of involuntary servitude. (United States v. Kozminski, supra, 487 U.S. at p. 941 [108 S.Ct. at p. 2759].) Reviewing its past Thirteenth Amendment decisions the court summarized the reasoning of those decisions. "The primary purpose of the Amendment was to abolish the institution of African slavery as it had existed in the United States at the time of the Civil War, but the Amendment was not limited to that purpose; the phrase `involuntary servitude' was intended to extend `to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.' Butler v. Perry, 240 U.S. 328, 332 [36 S.Ct. 258, 259, 60 L.Ed. 672] (1916). See also Robertson v. Baldwin, 165 U.S. 275, 282 [17 S.Ct. 326, 329, 41 L.Ed. 715] (1897); Slaughter-House Cases (1873) 83 U.S. (16 Wall.) 36, 69 [21 L.Ed. 394].

"While the general spirit of the phrase `involuntary servitude' is easily comprehended, the exact range of conditions it prohibits is harder to define. The express exception of involuntary servitude imposed as a punishment for crime provides some guidance. The fact that the drafters felt it necessary to exclude this situation indicates that they thought involuntary servitude includes at least situations in which the victim is compelled to work by law. Moreover, from the general intent to prohibit conditions `akin to African slavery,' see Butler v. Perry, supra, at 332-333 [36 S.Ct. at p. 259], as well as the fact that the Thirteenth Amendment extends beyond state action, compare U.S. Const., Amdt. 14, § 1, we readily can deduce an intent to prohibit compulsion through physical coercion." (487 U.S. at p. 942 [108 S.Ct. at pp. 2759-2760].)

The court then looked to the "actual holdings" of its cases and found "that in every case in which this Court has found a condition of involuntary *412 servitude, the victim had no available choice but to work or be subject to legal sanction." (487 U.S. at pp. 942-943 [108 S.Ct. at p. 2760].) In each of the cases to which the court referred, however, the compulsion was not simply to find work because income was needed to comply with a valid child support order, but to work for a particular individual or entity. Clyatt v. United States (1905) 197 U.S. 207 [25 S.Ct. 429, 49 L.Ed. 726] held that peonage included coercing a person under threat of legal sanction to work off a debt to the master. United States v. Reynolds (1914) 235 U.S. 133 [35 S.Ct. 86, 59 L.Ed. 162] invalidated a system under which a person subject to a misdemeanor fine could contract to work for a surety who would pay the fine, the "critical feature" (487 U.S. at p. 943 [108 S.Ct. at p. 2760]) of which made it a crime to breach the labor contract. The court also cited Pollock, supra, 322 U.S. 4, and Bailey v. Alabama, supra, 219 U.S. 219, in both of which failure to perform services for which money had been advanced was prima facie evidence of intent to defraud and criminal sanctions were imposed for the failure.

The court has also reaffirmed its understanding that the Thirteenth Amendment was not intended to apply to "exceptional cases" in which the right to labor was recognized at common law when the amendment was adopted. Examples given were the right of parents to the custody of children, whose labor could be compelled by the parent, and laws which prevent persons who have contracted to work aboard a ship from deserting the ship. (487 U.S. at p. 944 [108 S.Ct. at p. 2760].)^[10]Kozminski itself involved a charge that the defendant held retarded farm laborers in involuntary servitude.

Summarizing its conclusion the court observed that "our precedents clearly define a Thirteenth Amendment prohibition of involuntary servitude enforced by the use or threatened use of physical or legal coercion. The guarantee of freedom from involuntary servitude has never been interpreted specifically to prohibit compulsion of labor by other means, such as psychological coercion." (487 U.S. at p. 944 [108 S.Ct. at p. 2760].)

While the court also cautioned that it drew no conclusions from its historical survey about the potential scope of the Thirteenth Amendment, *413 and used broad language regarding physical or legal coercion, to date the only types of compelled labor it has characterized as involuntary servitude have been ones "akin to peonage."^[11] This understanding of the meaning of "involuntary servitude" is reflected in the high court's opinion applying the Thirteenth Amendment in Bailey v. Alabama, supra, 219 U.S. 219: "The words involuntary servitude have a `larger meaning than slavery.' `It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word slavery had been used.' Slaughter House Cases, 16 Wall. p. 69. The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude." (Id. at p. 241 [31 S.Ct. at p. 151].) "The Thirteenth Amendment prohibits involuntary servitude except as punishment for crime. But the exception ... does not permit slavery or involuntary servitude to be established or maintained through the operation of the criminal law by making it a crime to refuse to submit to the one or to render the service which would constitute the other. The State may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt." (Id. at pp. 243-244 [31 S.Ct. at p. 152].)

That only compulsion to labor under conditions akin to peonage or slavery was contemplated by the "involuntary servitude" language of the Thirteenth Amendment is also suggested by the debates in Congress that preceded approval and in the Civil Rights Act of April 9, 1866. There was no discussion of involuntary servitude during the debate on the Thirteenth Amendment other than the observation of Senator Sumner that inclusion of "involuntary servitude" was a surplusage that might create a doubt. (See Alvins, supra, 49 Cornell L.