Reid v. Perkerson, 17091
| Decision Date | 12 June 1950 |
| Docket Number | No. 17091,17091 |
| Parties | REID v. PERKERSON. |
| Court | Georgia Supreme Court |
J. T. Edwards, Valdosta, for plaintiff in error.
B. Lamar Tillman, Valdosta, Langdale, Smith & Tillman, Valdosta, for defendant in error.
Syllabus Opinion by the Court.
The Mayor and Council of Valdosta, on June 10, 1944, ordained: 'That from and after the passage of this ordinance it shall be unlawful for any person, either for himself, or as agent of another, to have in his possession in said city, any ticket, number, or anything else, representing a chance in any lottery, gift enterprise, or other similar scheme or device, irrespective of whether such lottery, gift enterprise, or other similar scheme or device is operated or is to be operated in the City of Valdosta or not, provided such possession of same by such person is held for the purpose of engaging in or participating in any such lottery, gift enterprise, or other similar scheme or device.' A fine not to exceed $200, or imprisonment not to exceed ninety days, was prescribed as a punishment for its violation, and the ordinance further provided: 'The possession in said city by any person of any such ticket, number, or anything else, representing a chance in any lottery, gift enterprise, or other similar scheme or device, shall be prima facie evidence of the violation of this ordinance by such person.'
On February 11, 1950, Georgia Reid was arrested without a warrant by members of the police force for the City of Valdosta, and charges were docketed against her for violating the above ordinance and for the possession of tax-unpaid whisky. In each case bail bond in the penal sum of $500 was required for her appearance in the recorder's court, and on her failure to post the same she was committed to the city's jail. Her husband, Willie Reid, brought habeas corpus against Wilbur Perkerson, the city's chief of police, for her release. His petition for the writ, after being amended, alleged that her arrest, confinement, and detention were illegal for these reasons: 1. She was arrested by the city's officers without a warrant. 2. Excessive bail was required for her appearance in the recorder's court to answer the pending charges. The city's ordinance of June 10, 1944, is unconstitutional and void because: (a) It dealt with a subject and penalized an act which was fully covered by existing State-wide penal statutes as condified by sections 26-"6501 and 26-"6502 in the Code of 1933; and (b) the provisions of the ordinance, which made the possession of a ticket, number, or anything else, representing a chance in any lottery, gift enterprise, or other similar scheme or device, prima facie evidence of its violation are arbitrary, discriminatory, and unreasonable. 4. The charge for possessing tax-unpaid whisky was 'nothing but a subterfuge to evade the State law,' and was violative of several enumerated constitutional rights, including the right of trial by jury. It was also alleged that the accused was ready and willing to give reasonable bail for her appearance in a State court to answer the offenses with which she was charged. The respondent demurred generally to the petition as failing to state a cause of action for the relief sought, and as showing on its face that the detention complained of was legal. The court sustained the demurrer and remanded the accused to the custody of the respondent. The exception is to that judgment. Held:
1. Where an application for the writ of habeas corpus affirmatively shows on its face, as here, that the restraint is legal, the judge to whom the writ is returned has power, on general demurrer, to dismiss the writ and remand the prisoner. In such a case, the general demurrer, under our practice, serves the purpose of a motion to quash the writ for insufficiency of allegation. Smith v. Milton, 149 Ga. 28, 98 S.E. 607; Coleman v. Grimes, 154 Ga. 852, 115 S.E. 641; Kinman v. Clark, 185 Ga. 328, 195 S.E. 166; Morris v. Aderhold, 201 Ga. 533, 40 S.E.2d 747.
2. The unconstitutionality of a statute or city ordinance under which a detention is sought to be sustained, generally is ground for relief on habeas corpus either before or after conviction or commitment for its violation. 39 C.J.S., Habeas Corpus, § 18, p. 458; Moore v. Wheeler, 109 Ga. 62, 35 S.E. 116, and citations; White v. Hornsby, 191 Ga. 462, 12 S.E.2d 875. 'An unconstitutional enactment is never a law; and if there can be a case in which a conviction is illegal and without jurisdiction, it seems that such a case is presented when it appears that either there is no law making criminal the alleged crime or authorizing its prosecution in the court wherein the sentence has been imposed.' 2 Freeman on Judgments 1092, § 634.
3. There is no merit in the contention presently made that the person detained was entitled to a discharge from custody because she was illegally arrested. In Holder v. Beavers, 141 Ga. 217, 80 S.E. 715, 716, this court said: But in the...
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