175 Ga. 545 | Ga. | 1932
Lead Opinion
The only question which arises in this case is whether it was the duty of the county commissioners to pay, or did the county commissioners have lawful authority to pay, Davis’s demand ? In the circumstances detailed in the statement of facts, we are of the opinion that the trial judge did not err in making the mandamus absolute. Art. 3, sec. 7, par. 19, of the constitution of 1877 declares: “The General Assembly shall have no power to
The plaintiffs in error rely on art. 7, sec. 16, par. 1, of the constitution, which declares: “"The General Assembly shall not, by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation, or association,” and upon the provisions of art. 7, sec. 6, par. 1, which provides: “The General Assembly shall not authorize any county, municipal corporation, or political division of this State to become a stockholder in any company, corporation, or association, or to appropriate money for or to loan its credit to any corporation, company, association, institution, or individual, except for purely charitable purposes.” It was held in Hines v. Etheridge, 173 Ga. 870, 872 (162 S. E. 113) : “There is no warrant for holding that a statute passed in pursuance of one provision of the constitution is unconstitutional and void for the reason that the provision under which the act is passed conflicts with another provision of the constitution, which, standing alone, might be in conflict with the provision under which the legislative act is passed.” So, even if there were conflict between the provisions of art. 3, sec. 7, par. 19, of the constitution of 1817, permitting the General Assembly to relieve sureties upon forfeited criminal recognizances where the principal, has been surrendered and placed
Judgment affirmed.
Dissenting Opinion
dissenting. We can not concur in the judgment, because art. 7, sec. 16, par. 1, of the Constitution of Georgia (Civil Code (1910) § 6573), declares: “The General Assembly shall not, by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation, or association.” That section has been construed by this court in the cases of Smith v. Fuller, 135 Ga. 271 (69 S. E. 177, Ann. Cas. 1912A, 70), and Geer v. Dancer, 164 Ga. 9 (137 S. E. 558). Those decisions did not deal with the refund of a criminal bond, but dealt with the repayment of an official bond. The principle involved in those cases seems to be the same as that involved in the instant case. The judgment of the trial court is upheld in the opinion of the majority on the strength of another section of the constitution, art. 3, sec. 7, par. 19 (Civil Code (1910) § 6447) : “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.” The two sections of the constitution involved, if possible, should be so construed as not to conflict. To do so we must so construe the sections as to restrict them to their express terms. Under the express terms of the last named, that is § 6447, the constitution expressly prohibits the General Assembly from relieving principals or securities upon forfeited recognizances “/rom the payment thereof," except under the conditions stated. Therefore, after the payment of such bonds there is no provision in the constitution for the relief of the principals or securities. Thus construed, there is no conflict in the two sections of the constitution. The same power of relief before payment, and no relief after payment, runs through many decisions on tax questions. It seems to be the settled policy of the State that after money has been paid into the State or county treasury the legislature no longer has power to direct its refund to any person.