172 Ga. 186 | Ga. | 1931
An indictment for misdemeanor charged J. T. Duncan with willfully and knowingly, and without authority from the board of directors of the Douglasville Banking Company, same being a chartered bank incorporated under the laws of Georgia, overdrawing his account with said bank in the sum of $263.61. He demurred to the indictment on three grounds: (1) that the allegations therein do not charge the defendant with any offense under the law; (2) that the indictment does not charge that the bank sustained any loss, and does not charge that the alleged overdraft was made fraudulently or with any design or intent to defraud the bank; (3) that section 19 of article 20 of the act approved August 16, 1919 (Ga. L. 1919, p. 216), upon which the indictment is based, is void and unconstitutional, in that it is in contravention of paragraph 21 of section 1 of article 1 of the constitution of the State, which provides that “There shall be no imprisonment for debt,” for the reason that the payment of an overdraft by a bank constitutes between the drawer thereof and the bank the relationship of debtor and creditor; and unless said overdraft is drawn and paid with some fraudulent intent or design, or
The demurrer was overruled, and the accused excepted. The case was transmitted to the Court of Appeals for review, and that court transferred the bill of exceptions and transcript of the record to this court. One of the questions to be determined in ruling upon the demurrer was whether section 19, article 20, of the banking act of 1919 was unconstitutional because of the provision contained in article 1, section 1, paragraph 21, of the constitution of Georgia, which declares that there shall be no imprisonment for debt. The cause was properly transmitted to this court, for the reason that the Court of Appeals is without jurisdiction in the matter, and the jurisdiction to determine the constitutionality of acts of the General Assembly is delegated by the constitution solely to the Supreme Court. There are other grounds of the demurrer which do not attack the constitutionality of the act.
We shall express ourselves first upon the question as to whether the portion of the act of the General Assembly referred to is urn-constitutional. It is strongly argued that for one to give a worthless check,, or draw a check for an amount in excess of his deposit, is but the creation of a debt; and that if the provision of the act referred to be enforced, it may result in imprisonment for debt, as forbidden by the constitution. Regardless of the fact that an officer of a bank would become civilly liable if he shorild obtain money or other thing of value from the creditor, and even if the bank might be entitled to srie and recover from one who made an overdraft within the terms of the statute as in an action for money had and received, and because the bank would be entitled ex equo et bono to collect the amount if the person who overdrew his account had sufficient funds to pay a judgment against him, — it is nevertheless true, in our opinion, that under this statute the officer who overdrew his account would be subject to criminal prosecution; that the performance of an act forbidden by law imposes criminal as well as civil liability is not at all in
In Neidlinger v. State, 17 Ga. App. 811 (88 S. E. 687), in which the writer delivered the opinion of the Court of Appeals, it was held: “Statutes should be so construed as to maintain, if possible, their validity. It is essential to the act of 1914, penalizing the drawing and uttering of worthless checks, drafts, or orders, that it be construed as applying only where there is a fraudulent intent on the part of the drawer. To construe it otherwise would be to declare it an instrument for the collection of debt by the processes of the criminal law, in contravention of sound public policy and of the constitution of the State.” The statute in this case does not contain the word “fraudulent.” Nor does the act of 1914 (Ga. L. 1914, p. 86), which provides that “any person who shall draw
Judgment affirmed.