18 S.E.2d 488 | Ga. | 1942
The resolution of the General Assembly approved March 6, 1941 (Ga. Laws 1941, pp. 1876-7), authorizing, empowering, and instructing the solicitor of the city court of Macon and the clerk thereof to refund to McCook as surety a certain sum of money paid by him into court on a criminal bond forfeiture, etc., is violative of article 7, section 16, paragraph 1, of the constitution of this State (Code, § 2-6401), which declares that "The General Assembly shall not, by vote, resolution, or order, grant any donation or gratuity, in favor of any person, corporation, or association."
The defendant demurred to the petition, contending that the General Assembly had no right to pass the resolution or authorize the refund, and that in doing so it violated the constitution of the State of Georgia, article 1, section 1, paragraph 3 (Code § 2-103); article 1, section 4, paragraph 1 (§ 2-401); article 1, section 3, paragraph 2 (§ 2-302); article 7, section 6, paragraph 1 (§ 2-5401); article 7, section 6, paragraph 2 (§ 2-5402); article 7, section 16, paragraph 1 (§ 2-6401); and article 3, section 7, paragraph 19 (§ 2-1819); and the Code of 1933, §§ 3-702 and 27-904. Also, that the petition was subject to demurrer because it set forth no cause of action and disclosed no legal or equitable basis for recovery. The demurrer was sustained, and the action dismissed. The plaintiff plants his case on a resolution of the General Assembly approved March 6, 1941 (Ga. L. 1941, pp. 1876-7), authorizing, empowering, and instructing the solicitor and the clerk of the city court of Macon to refund to McCook as surety "the money paid into court on said forfeiture, to be reimbursed *301 out of the fines and forfeitures coming into the city court of Macon;" the resolution reciting that after the said forfeiture and the issuance of an execution thereon, Adams, the principal in the bond, against whom a criminal charge was pending, was, by the efforts of McCook and much expense by him incurred, captured and surrendered to the sheriff, and on a plea of guilty was sentenced. The defendant urges several constitutional objections to the grant of the relief sought, and in the same connection refers the court to the act approved August 18, 1916 (Ga. L. 1916, pp. 263-265), amending the act creating the city court of Macon, which amendatory act contains the following provision: "That immediately after the adjournment of each regular term of said court, or any time previous thereto as he may deem proper so to do, the judge of said court shall distribute the fines and forfeitures arising from cases tried in said court; said fines and forfeitures shall be distributed as follows: all bills for insolvent costs due the solicitor-general, the solicitor of said court, the clerk of the superior court, the sheriff, and clerk of said city court shall be approved by the judge of said city court and entered on the minutes thereof, and when the judge distributes said fines and forfeitures he shall pay the same to the solicitor-general, the solicitor, the clerk of the superior court, the sheriff, and the clerk of said court, pro rata on their bills for insolvent costs for fees in cases in said city court, and in those cases transferred from the superior court of said county; and when said bills for insolvent costs of said named officers are fully paid, the judge shall order the surplus paid to the treasurer of the Board of Public Education and Orphanage for Bibb County, for the use of the schools of said county. "To this the plaintiff replies by citing the constitution, article 3, section 7, paragraph 19 (Code, § 2-1819), which declares: "The General Assembly shall have no power to relieve principals or securities upon forfeited recognizances, from the payment thereof, either before or after judgment thereon, unless the principal in the recognizance shall have been apprehended and placed in the custody of the proper officer." He takes the further position, that what he refers to as the gift to the Bibb County Board of Education, found in the act of 1916, supra, was conditional, not absolute; that it was subject to the right of the General Assembly to relieve sureties who apprehend their principals and surrender them; *302 that if this be not so, then the act of 1916 is repugnant to the resolution of March 6, 1941, supra; and that since the last expression of the General Assembly must prevail, the act of 1916 was thereby repealed pro tanto.
That provision of the constitution of this State which declares in effect that the General Assembly shall not by resolution grant any donation (art. 7, sec. 16, par. 1) was considered by this court and applied in Smith v. Fuller,
In interpreting the provisions of a constitution, it is to be presumed that the words therein used were employed in their natural and ordinary meaning. Epping v. Columbus,
The suggestion that this could not be treated as a donation or a gratuity, because it was in reality the fulfilment of a moral obligation to refund the money, seems to have been answered by this court in City of Fitzgerald v. Witchard,
In Tedder v. Walker,
Before May 1, 1941, the regular terms of the city court of Macon were held quarterly, on the first Monday in March, June, September, and December. Acts 1941, pp. 694-696. It has heretofore been seen that under the act of 1916, supra, immediately after the *306
adjournment of each regular term of said court the judge shall make distribution of the fines and forfeitures to the officers, and shall order the surplus paid to the treasurer of the board of education of Bibb County. Under the present state of the record, the date of the payment not being set forth, this court can not distinguish the instant case from that of Stewart v. Davis, supra, on the ground that here the sums paid by the surety had already been paid over to the treasurer of the board of education, whereas there the money was still in the hands of the county treasurer as custodian for the county authorities. There does remain this slight difference in the facts of the two cases: In the Stewart case the money, until and unless paid out to officers, remains in the fines and forfeitures fund in the custody of the county treasurer. In the instant case the surplus of the money arising from this source is by law to be paid over to the school board treasurer. In a sense, at least, it is already appropriated, even though it may remain uncollected. It is not, however, because of the shadowy distinction between the facts of the Stewart case and the instant case that we decline to apply it, but because we are of the opinion that such ruling is unsound, and that a logical extension of what this court decided in Smith v. Fuller and Geer v. Dancer, supra, compels a ruling that the resolution of the General Assembly here involved was void because it was an attempt by the legislature to donate funds to the surety, which was beyond its constitutional power. See Longino v. Hanley,
It is unnecessary to pass upon the other questions raised by the demurrer.
Judgment affirmed. All the Justices concur, except Bell, J.,who dissents.