State v. HendersonState v. Henderson
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- Before:
- Hunt
Lead Opinion
We granted certiorari to the Court of Appeals in Henderson v. State, 205 Ga. App. 542 (422 SE2d 666) (1992) to determine whether the requirement in
The district attorney brought an in rem condemnation proceeding against property seized in a drug raid, and Henderson and Hatcher, as owners or interest holders in the property, filed timely answers within 30 days after they had been served with the complaint. See
If an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.
The trial court denied the motion and ordered that certain of the property be forfeited to the state. The Court of Appeals reversed.
Several rules of statutory construction are applicable. Because it is a special statutory proceeding, we are required to strictly construe the forfeiture statute. See Hill v. State, 178 Ga. App. 563, 565 (2) (343 SE2d 776) (1986); Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983).3 In interpreting the statute, we look to the intent of the legislature and construe the statute to effect that intent. City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). We are also required to give words, except those of art, their ordinary significance. Id.;
The current forfeiture statute took effect on July 1, 1991, and there are few appellate decisions construing it. The paragraph under consideration has no counterpart in the previous statute. The 60-day time limit for hearings is a part of a new provision requiring that such hearings be held by a judge without a jury.4 This new provision states that where an answer has been filed, hearings “must” be held within
In examining the legislative intent behind the new statute, we note that, with regard to the predecessor statute, the Court of Appeals consistently has held the time limits contained therein to be mandatory. See, e.g., State of Ga. v. Vurgess, 182 Ga. App. 544, 546 (2) (356 SE2d 273) (1987) (construing prior
As pointed out by the Court of Appeals, the plain meaning of “must” is a command, synonymous with “shall.” Henderson v. State, supra. See also Allmond v. State, 202 Ga. App. 902, 903 (415 SE2d 924) (1992); Hubbard v. State, 201 Ga. 213, 214 (1) (411 SE2d 44) (1991). See Ga., Fla. &c. R. Co. v. Sasser, 130 Ga. 394, 395 (60 SE 997) (1908); Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1849); Alewine v. State, 103 Ga. App. 120, 122 (118 SE2d 499) (1961); Bass v. Doughty, 5 Ga. App. 458, 460 (63 SE 516) (1908).6 A mandatory construction of “must” as used in
Accordingly, because we agree with the Court of Appeals that the legislature used the word “must” in
Judgment affirmed.
All the Justices concur, except Fletcher and Corley, JJ., who concur specially.Notes
The same issue is raised in another case pending in this court, State v. Alford, _ Ga. — (Case No. S93G1303), on certiorari from Alford v. State, 208 Ga. App. 595 (431 SE2d 393) (1993).
The state argues that Henderson and Hatcher waived any right to insist on strict compliance with
The statute specifically provides that it must be liberally construed to effectuate its remedial purpose.
In Swails v. State, 263 Ga. 276 (431 SE2d 101) (1993), we upheld the provision of the new statute regarding trials before a judge without a jury against an attack that the provision violated the federal and state constitutional rights to trial by jury.
E.g., the previous statute required that the district attorney “shall” file a condemnation proceeding within 30 days of his receipt of notice of seizure (prior
The state points to a line of cases which hold that where a statute directs the doing of a thing in a certain time, without negative words restraining the doing of that action, generally the time provision is directory, rather than mandatory, and failure to meet the time requirement will not render the action invalid if the action is performed outside the time limit. See, e.g., Hopping v. Cobb County Fair Assn., 222 Ga. 704, 705 (2) (152 SE2d 356) (1966); O’Neal v. Spencer, 203 Ga. 588 (2) (47 SE2d 646) (1948); Willcox v. Beechwood Band Mill Co., 166 Ga. 367 (143 SE 405) (1928); Lang v. State, 168 Ga. App. 693 (310 SE2d 276) (1983). However, that proposition has been specifically rejected in construing the time requirements in the previous forfeiture statute. State of Ga. v. Luke, supra. See also State of Ga. v. Vurgess, supra; State of Ga. v. Waters, supra.
Although a respondent may seek a continuance of a hearing, it is the duty of the state to obtain a continuance if it does not invoke a hearing within the 60-day period or otherwise avoid the necessity of the hearing, e.g., by obtaining a dismissal of an answer. Of course, the trial court may continue the hearing on its own, for good cause, without a motion by either party.
Concurrence Opinion
concurring specially.
Although the issue may be one of first impression, the applicable rule of statutory construction is one of long-standing.
“ ‘[L]anguage contained in a statute which . . . commandsthe doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.’ [Cits.] ... ‘A statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.’ ”
Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976) (construing a statutorily prescribed time limit within which the juvenile court is authorized to hold a hearing in connection with an allegedly deprived child).
Likewise, however, the mere lack of “negative words” precluding the holding of a forfeiture hearing more than 60 days after service of the complaint does not compel a construction of the 60-day time limit as directory. Although a statutory time limit expressed in words of command unaccompanied by negative words of limitation is generally regarded as directory, there is an exception. Such a statutory time limit is to be construed as mandatory if the failure to comply can be said to result in “ ‘injury or prejudice to the substantial rights of interested persons. . . .’” Sanchez v. Walker County Dept. of Family &c. Svcs., supra at 410. Accordingly, the appropriate construction of
Applying this applicable rule of statutory construction, compli
statute sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute ([cit.]); and (2) the protection of property interests of innocent owners, as defined by the statute. [Cit.]
(Emphasis supplied.) State of Ga. v. Jackson, 197 Ga. App. 619, 621 (1) (399 SE2d 88) (1990).
The public interest requires that all suits in our Courts should be determined as speedily as possible, and the interest of the party, whose property is seized . . ., also requires that there should be no delay on the part of the [trial court], in [conducting the forfeiture hearing].
Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1849) (cited and relied upon by the Court of Appeals as authority in the instant case).
Accordingly, I concur in the majority’s construction of
I am authorized to state that Justice Fletcher joins in this special concurrence.