Washburn v. MacNeill , 205 Ga. 772 ( 1949 )

1. While the General Assembly may, under the provisions of article 3, section 7, paragraph 18 of the Constitution (Code, Ann., § 2-1918), relieve principals or securities upon forfeited recognizances, from the payment thereof, either before or after judgment thereon, where the principal in the recognizance shall have been apprehended and placed in the custody of the proper officers, a resolution of the General Assembly which seeks to refund a payment already made by the security after judgment absolute on such recognizance, is null and void as violative of article 7, section 1, paragraph 2 (1) of the Constitution (Code, Ann., § 2-5402), providing that "The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."

2. The trial court did not err in sustaining the general demurrer to the petition, seeking to enforce payment of the refund provided for under the resolution of the General Assembly approved February 25, 1949 (Ga. L. 1949, p. 2127).

No. 16765. SEPTEMBER 15, 1949. Justice Almand being disqualified, Judge David S. Atkinson was designated for this case.

E. E. Washburn and others filed a mandamus action on April 4, 1949, against Mrs. M. A. MacNeill, Treasurer of Fulton County, alleging as follows: that on February 25, 1949, the Governor of Georgia approved House Resolution No. 30-171C, which had been duly passed by the requisite constitutional majority of each House of the Legislature. The resolution authorizes, empowers, instructs and directs the Treasurer of Fulton County to refund to the petitioners the sum of $15,000, which had been paid to said Treasurer on October 22, 1947. The respondent has in her possession as Treasurer of Fulton County $15,000, which had been paid to the Treasurer by the Sheriff of Fulton County on October 22, 1947, said sum being the property of the petitioners at the time it was paid over to the sheriff, and said sheriff having paid this sum to the respondent as the property of the petitioners on a bond forfeiture from the Criminal Court of Fulton County, as alleged, set forth, and described in the resolution above referred to.

It was further alleged: That a certiorari bond which was signed for the principal, Fred Martin, by the petitioners in the Criminal Court of Fulton County was payable to the Honorable Ellis Arnall, Governor of Georgia, and his successors in office. As the result of becoming surety on the said bond of Fred Martin and as the result of the petitioners' depositing the sum of $15,000 cash with the Sheriff of Fulton County as additional collateral on said bond, the petitioners became obligated to the State of Georgia, and not to the County of Fulton, for the production of Fred Martin upon the call of his case in the court aforesaid. Upon default in the appearance of said Fred Martin and the forfeiture of said bond, the same became a debt due the State of Georgia. Upon compliance with the conditions of apprehension of the principal and placing him in the custody of the proper officers, as set forth in article 3, section 7, paragraph 18 of the Constitution of 1945 (Code, Ann., § 2-1918), the State of Georgia through the General Assembly of Georgia has the legal and constitutional right to release a surety on a forfeited recognizance which has been forfeited for non-appearance of the principal of said bond.

It is further alleged: That the State through the General Assembly has the legal and constitutional right to make and/or authorize and direct a refund or repayment to the surety on said bond, after the principal had been taken into custody of the proper officers, under the constitutional provision above referred to; that the matters and things recited in said resolution of said General Assembly are true and correct; and that the respondent fails and refuses to pay to the petitioners $15,000, as directed by the General Assembly under the resolution aforesaid.

The petition alleges: That the respondent arbitrarily, capriciously, and unreasonably fails and refuses to refund the said $15,000 as directed by the said resolution; and that the $15,000, paid by the Sheriff of Fulton County on October 22, 1947, to be applied on the bond forfeiture judgment, is the property of the State and subject to control and/or change of disposition by the General Assembly of Georgia.

It is alleged: That the General Assembly, in said resolution, having relieved the petitioners from all liability on said bond and having the constitutional authority to do so, and also the constitutional authority to authorize, empower, instruct, and direct the officer having the custody of the fund to dispose of the fund as the General Assembly shall direct, to the end that they should fully relieve the petitioners from any and all liability on the bond, and be given full and adequate relief — their power and authority to grant the relief carry with it the method by which it can be given effect; and that the petitioners are legally entitled to have the said sum of $15,000 paid to them out of the funds as aforesaid; but that the petitioners have no adequate and complete remedy at law unless the court grants a mandamus against the respondent herein.

The petitioners then pray that a mandamus nisi issue against the respondent, directing her to show cause before the court why a mandamus absolute should not be issued, requiring the respondent to refund and repay to the petitioners the sum aforesaid, as authorized, ordered, and directed by the General Assembly. The resolution referred to was attached to the petition as an exhibit and will not be here quoted, as it appears in the published volume of Georgia Laws 1949, p. 2127.

To this petition the defendant filed a general demurrer on thirteen numbered grounds, all of which were sustained by the trial court, and to which judgment exception is taken.

The first four are ordinary grounds of general demurrer. They are based, however, on the remaining grounds, which specifically set out constitutional reasons for sustaining the demurrer, and we will consider the first four grounds in connection with the constitutional questions involved.

The first fifth ground (there are two fifth grounds) alleges: "The petition for mandamus shows that it is predicated upon the resolution of the General Assembly of Georgia therein referred to and attached thereto as an exhibit. This resolution shows on its face that it is insufficient to authorize the relief of mandamus, and that it is null and void, in that it is violative of article 7, section 1, paragraph 2, subsection 1 of the Constitution (Code, Ann., § 2-5402), providing: `The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association.' The resolution of the General Assembly plainly appears to be an attempt by the legislature to donate to petitioners the sum of $15,000.00, which attempt is beyond its constitutional power, and violative of the above-referred-to and quoted provision of the Constitution."

The eleventh ground is as follows: "Said resolution, the basis of the petition, is contrary to and violative of the provisions of art. 3, sec. 7, par. 18, of the Constitution (Code, Ann., § 2-1918), providing: `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 officers.' Under this provision, the General Assembly may, under certain circumstances, relieve securities before payment but, under this provision of the Constitution, reimbursement after judgment and payment is forbidden and prohibited, and the resolution seeking to require such reimbursement is null and void."

The second fifth, the sixth, seventh, eight, ninth, tenth, twelfth, and thirteenth grounds are omitted as not being necessary to a determination of the case.

Georgia Laws 1924, p. 221, Section 1, respecting the Criminal Court of Atlanta, provides: "That all money arising from fines, forfeitures and from forfeited recognizances in said court shall be collected by the sheriff and remitted to the general treasury of said county." 1. Upon argument of the case in this court, counsel for the plaintiffs was asked if there was any allegation in his petition or in the resolution adopted by the General Assembly showing that the defendant, Fred Martin, had been apprehended and delivered to the sheriff, or other court officer, by the bondsmen who are seeking to recover the fifteen thousand dollars, the subject-matter of this suit. Counsel stated that there was no such allegation. The record sustains this statement.

There is also no allegation as to when the defendant failed to appear for trial or when forfeiture proceedings on the bond were instituted. The resolution, however, does allege that the rule absolute on the bond was taken at the July Term, 1947, and that on October 22, 1947, Fred Martin was taken into custody of the Sheriff of Fulton County.

According to Georgia Laws of 1892, p. 221, as amended by Georgia Laws 1935, p. 498, the terms of the Criminal Court of Fulton County commence on the first Monday in each month. Since the judgment absolute was taken at the July Term, 1947, and the act (Ga. L. 1892, p. 222) creating the Criminal Court of Fulton County provides that "the clerk shall make the scire facias on all forfeited bonds, recognizances or other obligations returnable to the third term of said court, at which return term a judgment absolute shall be rendered against the defendant or defendants and his or their securities on said recognizance or other obligations in the absence of such legal defences as are provided by law," and since it appears that the defendant, Fred Martin, was apprehended, delivered to, and taken into custody by the sheriff on October 22, 1947, we may conclude that the defendant Fred Martin had failed to appear for approximately six months before he came into the custody of the sheriff on October 22, 1947.

As it nowhere appears in any of the record, either in the body of the petition or the resolution of the General Assembly, that the defendant was apprehended and surrendered by his bondsmen, and no explanation of this omission has been offered by counsel in his argument of the case, we may also assume and do assume that the defendant was apprehended by neither of the bondsmen, petitioners in this case, nor by any other person for them.

Some of the constitutional questions in this case have been before this court in well-considered cases in recent years. InStewart v. Davis, 175 Ga. 545 (165 S.E. 598), by a majority of 4 to 2 (Atkinson and Gilbert, JJ., dissenting), this court held that, under the circumstances in that case, a resolution in some respects similar to the resolution here under consideration was valid. In the Stewart case it appeared that the bondsmen "apprehended Young [the defendant] and delivered him to the Sheriff of Fulton County." On page 550, Mr. Chief Justice Russell said: "Though the security could not produce the principal at the time the bond was forfeited, the diligence of the security did later produce the presence of the principal and his delivery to the proper officer," which was his obligation under the forfeited bond. This difference between the facts in the Stewart case and those in the case at bar is of such consequence as to remove theStewart case as a precedent, if that was necessary.

A few years after the decision in Stewart v. Davis, supra, the court considered McCook v. Long, 193 Ga. 299 (18 S.E.2d 488), which on a similar state of facts and legal questions held: "The resolution of the General Assembly approved March 6, 1941 (Ga. Laws 1941, pp. 1876-7), authorizing, empowering, and instructing the solicitor of the city court of Macon and the clerk thereof to refund to McCook as surety a certain sum of money paid by him into court on a criminal bond forfeiture, etc., is violative of article 7, section 16, paragraph 1, of the constitution of this State (Code, § 2-6401), which declares that "The General Assembly shall not, by vote, resolution, or order, grant any donation or gratuity, in favor of any person, corporation, or association.'" The McCook case was concurred in by 5 of 6 Justices, Bell, J., dissenting. The court considered and refused to follow the Stewart case upon the ground that, a rule absolute having been taken, the judgment had become final, the amount thereof paid, and that any attempt by legislation to restore the money to the bondsmen would be a gratuity. Judge Grice who wrote that opinion followed the dissenting opinion in the Stewart case.

The decision in the McCook case goes into great detail, and on page 305, in showing wherein the court reached an erroneous conclusion in the Stewart case, said: "The conclusion thus sought to be drawn appears to overlook the fact, so clearly pointed out in the minority opinion in the same case, that under its plainly stated terms the constitution expressly prohibits the General Assembly from relieving principals or securities upon forfeited recognizances `from the payment thereof,' except under the conditions stated. In Stewart v. Davis, the General Assembly was not undertaking to relieve Davis `from the payment thereof,' but sought to have refunded a payment already made by him."

In conclusion in the McCook case, the court states: "It is not, however, because of the shadowy distinction between the facts of the Stewart case and the instant case that we decline to apply it, but because we are of the opinion that such ruling is unsound, and that a logical extension of what this court decided in Smith v. Fuller and Geer v. Dancer, supra, compels a ruling that the resolution of the General Assembly here involved was void because it was an attempt by the legislature to donate funds to the surety, which was beyond its constitutional power. See Longino v. Hanley, 184 Ga. 328 (191 S.E. 101)."

The eleventh ground of demurrer in the case at bar sets up the contention that paragraph 18, section 7, article 3 (Code, Ann., § 2-1918) of the Constitution does not permit the refunding of money paid on a bail recognizance, but prohibits such action.

Counsel for the plaintiff in error argues that there was a moral obligation to sustain the resolution in question. We can see no such obligation either moral or otherwise. On the contrary, it is our opinion that — if a condition should arise in this State which would permit a defendant in a criminal case to ignore the assignment of his case for trial, or on an appeal bond to ignore the forfeiture proceedings, and permit his recognizance to be forfeited and collected, and thereafter upon being captured, and turned over to the sheriff to serve his sentence, then upon a simple resolution of the legislature be able to have the money collected on the forfeited recognizance taken from the county treasury where it had been legally paid by the sheriff, and returned to the bondsmen — such a state of affairs would hinder and in many instances destroy the enforcement of the law in criminal cases. Such a situation would in our opinion be abhorrent to a proper sense of public duty and the proper administration of justice in the courts. In such a case there could not possibly be a moral obligation to refund the bond penalty collected and paid into the county treasury.

In considering the questions here raised under article 7, section 1, paragraph 2, subparagraph 1, and article 3, section 7, paragraph 18, of the Constitution of 1945 (Code, Ann., §§ 2-5402 and 2-1918), the dissenting opinion in Stewart v. Davis,175 Ga. 545 (supra), on page 551 stated: ". . after the payment of such bonds there is no provision in the constitution for the relief of the principals or securities."

On page 306 of the McCook case (193 Ga. 299), the court (Justice Bell dissenting) affirmed an order sustaining the general demurrer "because it was an attempt by the legislature to donate funds to the surety, which was beyond its constitutional power."

In consonance with McCook v. Long, supra, we hold that, after the payment of a final judgment on a bond forfeiture and the delivery of that money to the county authorities, who maintain the courts, no resolution or act of the legislature may legally direct a refund of such payment. In this connection, seeMcCook v. Long, 193 Ga. 299, 303 (supra), and City ofFitzgerald v. Witchard, 130 Ga. 552 (61 S.E. 227).

2. The judgment of the trial court will be sustained upon the general grounds of demurrer here considered. Since the rulings heretofore made are controlling, we do not deem it necessary to consider the remaining grounds, for it has long been a rule of this court that it will not decide constitutional questions if not necessary to a proper consideration of the case sub judice.

Judgment affirmed. Duckworth, C. J., Atkinson, P. J., Wyatt,Head, Candler, and Hawkins, JJ., concur.