167 Ga. 347 | Ga. | 1928
The grand jury returned a special presentment against J. H. Bennett, in three counts. The first and second of these counts were based upon section 700 of the Penal Code, which makes penal a violation of the provisions of section 3444 of the Civil Code. The third count charged him with a violation of the act of August 17, 1920 (Ga. L. 1920, p. 215), in that he engaged in the business of mailing loans under that act without having first obtained a license to conduct said business from the superintendent of banks. On this presentment a bench warrant was issued, and Bennett was arrested and taken into custody by the sheriff thereunder. Thereupon he applied for the writ of habeas corpus, and in his application alleged that section 3444 of the Civil Code and section 700 of the Penal Code were repealed by the act of August 18) 1916 (Ga. L. 1916, p. 48); that the penal provisions of the act of August 17, 1920, do not apply to him, because he .had never become a licensee thereunder; that the penal provisions of said act are null and void, because they are in conflict with section 3444 of the Civil Code, if that section is still of force; that section 1 of said act of 1920 is null and void for uncertainty and indefiniteness, because it provides that a license must be obtained from “the State Bank Examiner,” when no such officer exists; that section 13 of said act is void for the same reason; and that for this reason the third count in said presentment is null and void; and that in consequence of the above facts all three counts of said presentment are void and his imprisonment is illegal. He further alleges that his trial under the first two counts of the presentment for a violation of section 700 of the Penal Code, and his trial under the third count of the presentment under the act of 1920, would put him in jeopardy twice for the same Offense, in violation of article
Petitioner contends that section 3444 of the Civil Code and section 700 of the Penal Code were repealed by the act of August 18, 1916, which was passed to “repeal sections 3438 and 3442 of the Code of 1910 regulating the forfeiture where usury is charged; and to provide forfeiture where any person, company, or corporation shall reserve, charge, or take for any loan or advance in money more than the legal rate; and for other purposes.” Ga. L. 1916, p. 48. This act of 1916 does not expressly repeal section 3444 of the Civil Code or section 700 of the Penal Code. It only repeals “all laws and parts of laws in conflict” with it. There can be no contention that said sections were expressly repealed by the act of 1916. So we are to inquire whether they were impliedly repealed by this act. It is well settled that repeals by implication are not favored. Branch Bank v. Kirkpatrick, 5 Ga. 34; Haywood, v. Savannah, 12 Ga. 404; Erwin v. Moore, 15 Ga. 361; Griggs v. Macon, 154 Ga. 519, 526 (114 S. E. 899); Friedman v. Mizell, 164 Ga. 1, 5 (137 S. E. 400). There must be a positive repugnancy between the provisions of the new law and those of the old one. Branch Bank v. Kirkpatrick, and Griggs v. Macon, supra. The necessary implication of repeal must be so strong that it is equivalent to an express repeal. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 122; Freidman v. Mizell, supra.
Applying these rules, does the act of 1916 impliedly repeal section 3444 of the Civil Code and section 700 of the Penal Code? In answering this question we must look for the purpose and intent of the act of 1916. Its first purpose was to repeal sections 3438 and 3442 of the Code of 1910. The first of these sections provided that “Any person, company, or corporation violating the provisions of section 3436 shall forfeit the excess of interest so charged or taken, or contracted to be reserved, charged, or taken.” Section 3436, which is still in force, makes it unlawful “for any person, company, or corporation to reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection
The next purpose of the act of 1916 was, as declared in its preface, “to provide forfeiture where any person, company, or corporation shall reserve, charge, or take, for any loan or advance in money, more than the legal rate.” The first section of the act provides for this forfeiture, and is as follows: “Any person, company, or corporation violating the provisions of section 3436 of the Code of 1910 shall forfeit the entire interest so charged or taken, or contracted to be reserved, charged, or taken.” Here the act deals alone with the civil forfeiture. But it is contended that section 2 of this act provides “that no further penalty or forfeiture shall be occasioned, suffered, or allowed, other than as stipulated in section 1” thereof; and that this provision means that there shall be no further criminal penalty for a violation of section 3436. The language, “further penalty or forfeiture,” in this section of this act was not intended to repeal any criminal law imposing a penalty for violating section 3436. Clearly it was meant to provide that no civil penalty or forfeiture should be occasioned, suffered, or allowed, further than the forfeiture provided in the first
It follows that counts 1 and 2 of the special presentment were good and set out offenses. So the presentment was not bad as a whole. This being so, a general demurrer to the whole presentment would not lie. Sutton v. State, 122 Ga. 158 (50 S. E. 60). So habeas corpus will not lie to discharge a defendant, unless all the counts of the indictment are void. McDonald v. State, 126 Ga. 536 (55 S. E. 235). This being so, the defendant was properly arrested under the bench warrant issued thereunder, and his custody by the sheriff was lawful; and the court below did right in refusing to discharge him and in remanding him to the custody of the sheriff.
In view of the ruling last stated, it is unnecessary for us to decide whether any offense was set forth in the third count of the presentment, for any of the reasons assigned by the plaintiff; and in the absence of any ruling by the trial judge upon this subject, we leave this question open.
Judgment affirmed.