79 Ga. 58 | Ga. | 1887
On the 2Sth of February, 1876, the legislature passed an act as follows:
*60 An act to provide for keeping a record of all bonds issued in this State, and for other purposes.
Section i. Be it enacted, etc., that from and after the passage of this act, it shall be the duty of all public and private corporations in this State, who shall issue or indorse any bonds for circulation, to furnish to the secretary of State a certified statement showing the letter, date of issue, number of bonds, amount of issue, rate of interest, when and where payable, and the date of the law, if any, authorizing such issue. And it shall bo the duty of the secretary of State to have same recorded in a hook to be kept by him for that purpose.
Section ii. Be it further enacted, that all public and private corporations in this State, who have bonds now in circulation, issued or indorsed by them, shall furnish to the secretary of State, within ninety days from tho passage of this act, certified statements required by the first section of this act, and the same shall be recorded by said officer as provided for in said first section.
Section in. Be it further enacted, that public or private corporations neglecting or refusing to comply with the provisions of this act, shall be fined in a sum not exceeding five hundred dollars for each offence, one-half of said fine to go to the party giving information of such violation, and the other half to go to the public school fund of tho county.
Section iv. Be it further enacted, that no bonds shall be placed in circulation until the provisions of the first section of this act with regard to such bonds shall have been complied with, and any person placing such bonds in circulation without such compliance shall be subject to a fine of five hundred dollars for every bond so put in circulation, etc.
The plaintiff in error, the governor of tlie-State, brought an action in favor of a certain person as informer, and for the school fund of the county, against the Gate City GasLight Company. Two counts are in the declaration, one upon the third section of this act, and one upon the fourth section. The declaration was demurred to by the defendant. There was a special demurrer as to the first count in the declaration, upon the third section of the act, and a general demurrer to the declaration. The court sustained the demurrer and dismissed the action. This was excepted to, and this is the error complained of.
■We do not think that an indictment is the proper remedy under this act. The defendant is a corporation. We do not understand that in this -State a corporation can be indicted for an offence. This is an offence against the law, and we do not think the defendant can be indicted for it; but we think that this action was properly brought by the governor, for the benefit of the informer and the county school fund, and that it can be properly maintained under our code, which authorizes the State, the governor, the attorney-gen eral, or the solicitor-general, where the act does not provide for any person bringing a suit for the penalty, as in this case, to bring the action for the benefit of any person who informs.
As the act does not point out whether the court is to fix the penalty prescribed by the third section, or whether the jury is to fix it, we think that the amount of the penalty is a question for the jury to decide, under all the facts and circumstances of the case. The defendant may submit evidence to show good faith in having issued the bonds without having made a return to the secretary of State; it may show that it did so in ignorance; it may show that as soon as it was ascertained what the law was, it made a return to the secretary of State; and these things may be taken into consideration by the jury, under proper instructions from the court, and the jury may find against the defendant and assess the penalty, whether one hundred dollars or five hundred dollars. It is not, under any circumstances, to exceed five hundred dollars. The penalty is based on an omission of duty; that is the act complained of — a single act — in failing to make a return to the secretary of State as to (he bonds which have beenissuedo
./Judgment reversed. ,