Stewart v. Davis

Atkinson and Gilbert, JJ.,

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.