55 S.E.2d 599 | Ga. | 1949
1. In attesting an affidavit in forma pauperis, accompanying a bill of exceptions, a notary public need not affix his seal, since it is not such a notarial act, under Code § 71-108, as requires a seal for its authentication. Chappell v. Boyd,
2-4. The act of 1941 (Ga. L. 1941, p. 480; Code, Ann. Supp., § 26-2812), which declares that it shall be a felony for any person, with the intent to defraud, to use the proceeds of any payment made to him for the purpose of improving real property, otherwise than for the payment of labor and material cost, if there be any obligations outstanding, and providing that the failure to pay such labor and material cost would be prima facie evidence of intent to defraud, is not violative of art. 3, sec. 7, par. 8 of the Constitution of the State of Georgia (Code, Ann., § 2-1908), because it refers to more than one subject-matter, or contains matter different from what is expressed in the title; or in violation of art. 1, sec. 1, par. 21 (Code, Ann., § 2-121), which prohibits an imprisonment for debt; or in violation of the equal-protection and due-process clauses of the Fourteenth Amendment of the United States Constitution (Code, § 1-815).
The defendant interposed to the indictment a general demurrer, in which he attacked the constitutionality of the act on three grounds: (a) It violates art. 3, sec. 7, par. 8 of the Constitution of Georgia (Code, Ann., § 2-1908), in that it refers to more than one subject-matter, and contains matter different from what is expressed in the title thereof. (b) It violates art. 1, sec. 1, par. 21, of the Constitution of Georgia (Code, Ann., § 2-121), which declares that "There shall be no imprisonment for debt." (c) It violates the equal-protection and due-process clauses of the Fourteenth Amendment of the Constitution of the United States (Code, § 1-815). The demurrer was overruled on every ground, and the exception here is to that judgment. 1. Headnote 1 requires no elaboration.
2. It is contended by the plaintiff in error that the last sentence of the act is a new and different subject-matter, not included in the title thereof, and for that reason the entire act is unconstitutional. That sentence of the act provides that "A failure to pay for the material or labor so furnished shall be prima facie evidence of the intent to defraud." In Cady v.Jardine,
3. The act does not violate the constitutional inhibition against imprisonment for debt. In Johnson v. State, supra, it was held: "The act here in question creates a form of larceny after trust. . . The object of the act was to make penal the conversion of funds delivered for the purpose of applying to labor and material cost, with a provision that there would be a conversion when such funds were otherwise used while there remained any unpaid labor or material costs." The legislative purpose was to punish for the fraudulent conversion, and not for a failure to comply with a contractual obligation. See Lamar v.State,
4. It was held in Johnson v. State, supra, that the act in question was not in violation of the due-process clause of the 14th Amendment to the United States Constitution. For the same reasons as stated in that decision, it does not violate the equal-protection clause of that amendment.
For the reasons stated, the trial court did not err in overruling the general demurrer to the indictment.
Judgment affirmed. All the Justices concur, except Wyatt, J.,who dissents. *98