Sims v. Hutcheson

72 Ga. 437 | Ga. | 1884

Jackson, Chief Justice.

The judge of the superior court, on a certiorari to the road commissioners, sanctioned their action in fining the plaintiff in error, and when he refused to pay it, in sending him to jail for ten days. Error is assigned on that judgment.

1. The notice was legal at the time given, it being posted according to the Code, §626. The act of 1881, altering the mode of notice to personal notice, was passed after - this notice was given under that section.

2. The commissioners’ court was held within twenty days, instead of after, as the Code reads, section 658, par. 3. The important point is, did the defaulter have notice, and was he there ? If so, in this sort of court all mere irregularities do not matter. This road court is wholly unlike the justices’ courts under the constitution of 1868, where the time fixed was of the essence of the jurisdiction of the court. Hence, the cases cited in respect to those courts, as then organized under that constitution, have no application to the meeting of road commissioners to punish defaulters. Besides, the better construction of section 658 would be, perhaps, within twenty days. The time within which excuses were to be rendered by defaulters, under the act of December 13, 1818, section 5, Cobb’s Digest, p. 948, was within twenty days. The codifiers put it “ after twenty days,” but the act itself “ within twenty days.” There is better sense in reading it “ within” instead of “after.” “After” is wholly indefinite. Six months, a year, would be after the default; “ within” would have the matter fresh in memory, and easily determined.

But it is immaterial, where notice was given and the party attended.

3. The notice to work need not'have been in writing. Code, §§ 614, 615. Neither the act of 1818; nor the Code expressly requires it. This plaintiff in error got the notice and was told by the overseer when and where to work, and what tools to bring. When he appeared, that answered all the purposes of the notice.

4. He was notified the day before. The statute says one day. True, it was not as early in the morning as would make twenty hours before' the time people ought to begin a day’s work in the morning: but the day before answered the purpose and brought him there. Code, §614.

5. When he got there late, he was directed to go to work, but would not, and went home, it seems, because the overseer threatened to report him for tardiness. What sort of reason was this for such contumacy ?

6. This court has held that if the fine was not paid, imprisonment was legal, and so is the Code, §619.^* It may be enforced by execution or by imprisonment, or the defaulter may be punished by fine or jail. If paid at any time, the imprisonment was to cease in this case. The Code also declares that execution or other process may be issued against the convicted (Code, §658, par. 3), of course to enforce the fine. The objection raised is that the punishment was changed. The record shows that it was simply enforced.

Judgment affirmed.

* See 70 Ga., 407