148 Ga. 832 | Ga. | 1919
Pursuant to the provisions of an act of the General Assembly of this State, entitled an act to provide for the inspection by State authorities of private institutions, etc., approved August 21, 1916 (Acts 1916, p. 126), -a committee of five members of the grand jury of the October term, 1917, of Chatham superior court, called at the Convent of the Sisters of Mercy, and at the Convent of the Franciscan Sisters, for the purpose of making -the inquiry and investigation provided for in said act. Mother Clare, in charge of the Convent of the Sisters of Mercy, and Sister Felicitas, in charge of the Convent of the Franciscan Sisters, declined to permit the committee to make the investigation desired. This committee, through the grand jury, reported the refusal to the superior court. The solicitor-general of the Eastern judicial circuit filed a petition to the superior court, reciting the facts just set forth, and setting up the contention that the refusal by Mother Clare and by Sister Felicitas constituted a contempt of court, and prayed that an order be passed requiring
1. The judge who heard the issues made by the rule and the answer, in passing upon the case and rendering the judgment complained of, delivered an opinion in writing, which (omitting only certain general observations made in the course of the opinion which do not materially affect the decision and discussion of the issues involved) is as follows: “It appears that the respondent is the head of a private institution known as St. Francis Convent. That that institution is not only a convent but is also a 'private orphanage.’ That no person is kept in confinement in the convent, and that the orphanage, which is for colored orphans, is governed by the usual and customary rules and regulations that obtain in orphan asylums. In a wide sense, the orphans are persons who are kept in confinement, and to this private orphanage the act approved August 31, 1917, applies.
“The constitutionality of the act is attacked on about forty grounds, great and small, general and special. I do not deem it necessary to consider in detail all of these grounds. They can be grouped together under three heads, of form, substance, and procedure. In the group 'form’ falls the objections based on Code see. 6437, dealing with one subject-matter. Under this general ground there are six subdivisions. The first contention is that the act provides for inspection T»y State authorities,’ and that five members of a grand jury are not State authorities. The grand jury represents the State. It acts 'in the name and behalf of the citizens of Georgia.’ Its action is taken to maintain the peace, good order, and dignity of the State. The county is only a subdivision of the State. In the enumeration of county officers grand juries are not included. There may be county authorities and
"The second and third contentions are that the act provides fo'the examination and questioning of the inmates of these institutions, and that the caption provides only for inspection. Inspection and examination are synonymous terms, or are very nearly so; and if in order to make an inspection it-is necessary to question an inmate, it is quite clear that the power given to inspect would include the power to question. The power being given, the usual and ordinary means for the exercise of the power are implied. Inspection, examination, questioning are all related, and are but the means employed to reach a given end, that is, the inspection of % institutions in which citizens of Georgia and of other States are Icepi in confinement.
"The fourth and fifth contentions deal with the demand for release of an inmate and special presentment, while the sixth is a resumé of the first, second, third, fourth, and fifth contentions.
"The great purpose of the act is inspection of private institutions where citizens are kept in confinement. Any instrumentality in aid of this purpose is not a subject-matter different from the title.
“In the group of ‘substance’ falls the objection, with its several subdivisions, based on Code sec. 6358, dealing with protection to persons and property; the objection based on Code sec. 6359, dealing with due process of law, with a like number of subdivisions; the objection based on Code see. 6272, dealing with searches and warrants, with its three subdivisions; and the objection based on Code see. 6700 (the 14th amendment of the constitution of the United. States), dealing with citizenship, with its eight subdivisions. Wherein this act breaks down the constitutional barrier which impartially and completely protects the person and property of the respondent, I am at a loss to see. That the respondent may be deprived of her liberty and property is true, but it is not true that such deprivation will be without due process of law. The
“As to unreasonable searches, it is safe to say that no search is required to be made under the act. Certainly I can not read into the act words that are not there. There is nothing in the act which can be construed as authority for a committee from the grand jury of this State to make an unreasonable search of this orphanage. The legislative authority is sufficient to authorize the inspection of private institutions where citizens are kept in confinement.
“I do not see the application of the 14th amendment to the constitution of the United States to the instant case. For the reasons heretofore given, this State does not by the act in question abridge any privilege or immunity of the respondent, deprive her of any right without due process of law, or deny her the equal protection of the laws. The respondent erroneously assumes that the committee from the grand jury become vested under the act with all the powers of the grand jury.and the trial court and jury, and that in this way the respondent is deprived of certain privileges and immunities, such as right of appeal, cross-examination, etc. The committee from the grand jury has no such powers, and can not have. -
“In the group of ‘procedure’ falls the objection based on Code see. 6361, dealing with accusation and list of witnesses; the objection based on Code sec. 6497, dealing with the judicial powers vested in certain courts; and objection based on Code sec. 6391, dealing with uniformity of laws. Under this last objection are two subdivisions. The vice of this group is that the respondent assumes
“The unconstitutionality of the act has not been made to appear so clear and palpable as to justify the annuling of it, and therefore it is adjudged that the respondent, Sister Felicitas, is in contempt, and judgment will be entered accordingly.”
Judgment affirmed.