Rhodes v. Pearce , 189 Ga. 623 ( 1940 )

It is provided in the Code, § 76-101: "Any judicial officer authorized to hold a court of inquiry may, upon the information of others, under oath, or on his own motion, issue his warrant against any person in the county whose conduct is such as to justify the belief that the safety of any one or more of the citizens of the county, or the peace or the property of the same, is in danger of being injured or disturbed thereby; and upon the return of the warrant, the court in its discretion may require from such person a bond with sureties for his good behavior until the next term of the superior court of the county." This section of the Code being penal in character must be strictly construed. Under such construction it does not provide that any judicial officer authorized to hold an inquiry (in this case a judge of the superior court) may issue a warrant for arrest of a person or to commit such person to jail for failure to give a peace bond as provided by the statute. Where a judge of the superior court, proceeding under this section of the Code, issues a warrant requiring the arrest of a party and his appearance at a stated time and place before the judge, to be dealt with according to law, and at the time and place designated affords the party a hearing at which evidence is introduced and witnesses examined on oath, after which the party so arrested and appearing before the court is ordered to give bond and on failure to do so is committed to imprisonment in the jail, such order is unauthorized by the statute and is void for want of jurisdiction to order the arrest and commitment to jail. On habeas corpus proceedings instituted against the sheriff detaining the defendant in jail in virtue of such order of commitment on failure to give bond as provided therein, it was erroneous for the judge to refuse to discharge the prisoner and to remand him to the custody of the officer. If this section is construed to authorize arrest and imprisonment, it is repugnant to article 1, section 1, paragraph 16, of the constitution (Code, § 2-116), and the movant was entitled to discharge on this construction. Mr. Chief Justice Reid authorizes me to state that he concurs in this dissent.