The Bank Or St. Mary's v. The State Or Ga.

• Decision Date: 31 January 1853
• Docket Number: No. 79.,79.
• Parties: The Bank or St. Mary's, plaintiff in error, vs. The State or Georgia, &c. defendant.
• Court: Georgia Supreme Court

12 Ga. 475

The Bank or St. Mary's, plaintiff in error, vs. The State or Georgia, &c. defendant.

No. 79.

Supreme Court of the State of Georgia

JANUARY TERM, 1853.

Action on the case, in the nature of a qui tarn action. Tried before Judge Iverson. November Adjourned Term of Muscogee Superior Court, 1852.

This was an action brought upon the information of Philip A. Clayton, against the Bank of St. Mary's, for the recovery of the penalty imposed by the Act of 1835, for the issuing of change bills, being bills under the denomination of five dollars. On the trial, the issuing of one hundred and ninety bills of this description, (identified before the Jury,) was proven. A verdict was rendered in favor of the plaintiff, for the half of the penalty affixed by the Statute for the issuing of these several bills, viz: $47,500. A writ of error was sued out to the rulings and decisions of the Court upon this trial. The view taken by the Supreme Court, renders it unnecessary to set forth these several decisions; the case turning upon the question whether the Act passed by the Legislature of 1851-2, repealing the Act of 1835, (under which this action was brought,) after suit commenced, but before judgment, relieved the defendant from that portion of the penalty, (viz: one-half,) which under the Act of 1835, went to the informer. The Court below held that it did not.

Benning and Moses, for plaintiff in error.

B. Hill and C. Williams, for defendant in error.

By the Court.—Lumpkin, J. delivering the opinion.

The Act of the Legislature of Georgia, passed December 24th, 1832, to prevent the circulation of bank bills under the denomination of five dollars, within the State, provides—" That from and after the first clay of September next, it shall not be lawful for any bank, or body corporate, invested with banking priviliges, or person or persons whomsoever, within the limits of this State, to issue, emit, pay away, pass, or circulate, any bank bill, note, ticket, or paper, purporting to be a bank note, or of the nature, character, or appearance of a bank note, ocalculated for circulation as a bank note, either of the Banks of this State, or of any other State, of a less denomination than five dollars. Provided, that nothing therein contained, shall be so construed as to make it unlawful for any corporation or person or persons whomsoever, to present for payment, or in any other mode transmit for redemption to any bank, either of this or any other State, any bill or bills of such bank, of the denomination aforesaid, remaining in circulation after the time aforesaid, with a view and in the mode to stop the future circulation thereof." And,

"Any bank or corporate body, or person or persons whomsoever, offending against the provisions of the first section of this Act, shall forfeit the sum of one hundred dollars, to be sued for in the name of the State by any licensed attorney, on the application of any informer cognizant of such offence, who shall be a competent witness on the trial, and recovered by an action of debt, or on the case, in any Court of competent jurisdiction in this State, with full costs; one-half whereof when recovered, shallbe paid to the use of the State, and the other half to the use of the informer." And,

" Each and every issuing, passing away, or circulating of each and every such bank bill or note, as is specified in the first section of this Act, contrary to the spirit, true intent and meaning thereof, shall constitute a new, separate, and distinct offence, and shall be liable to a new, separate, and distinct penalty." Cobb's New Dig. pp. 99, 100.

The Statute amendatory of this, approved December 22d, 1835, enacts—" That from and after the passage of the same, it shall not be lawful for any bank or body corporate, or person or persons whomsoever, within the limits of this State, to issue, emit, pay away, pass or circulate any bank bill, note, or ticket, or paper, purporting to be a bank note, or of the nature, character, or appearance of a bank note, or calculated for circulation as a bank note of either of the banks of this State, or of any other Stale, of a denomination other than of the denomination of five dollars, ten dollars, twenty dollars, fifty dollars, hundreds of dollars, or thousands of dollars." And,

" Any bank, or body corporate, or person or persons whomsoever, offending against the provisions of this Act, shall forfeit for each offence, the sum of $500, to be recovered and applied as provided for by the second section of the Act hereinbefore recited. And that the third section of that Act, shall in like manner apply to and govern in cases provided by this Act." Cobb's New Digest, 102.

This action on the case qui tam, was brought in the name of the State upon the information of Philip A. Clayton, in the Superior Court of Muscogee County, to recover of the Bank of St. Mary's the penalty for issuing and passing three hundred change bills, contrary to the provisions of the foregoing Acts. On the 23d day of December, 1852, the cause came on to be heard and tried before Judge Iverson, when the Jury found for the plaintiff $47,500, with cost of suit.

During the progress of the trial, objections were taken to the declarations, to the evidence, to the refusal of the Court tocharge as requested by defendant\'s counsel, and to the charge as given.

We shall examine none of the numerous technical questions spread out upon this record. We should probably affirm the rulings of the Court below on most of them. The only points we propose to consider and decide, are

1. Whether the law under which this penal suit was prosecuted was repealed before the rendition of the judgment? And, 2. If so, does that repeal bar this action?

It would, in our judgment, be a waste of time to undertake to demonstrate that the Statutes of 1832 and 1835, were repealed by the Act of 1851-2. Pamphlet Laws, pp. 25, 26. The Act of 1832, was passed to prevent the circulation of bank bills under the denomination of five dollars; as ones, twos, threes, fours, as well as the fractional parts of a dollar; and imposes a penalty of $100 for every violation of its provisions.

But finding front experience, that the benefits intended to be secured to the currency of the country, were partially frustrated by the emission of bills between the denominations of fives, tens, twenties, fifties, hundreds and thousands, the Act of 1835 was passed to restrict the circulation exclusively to these numbers; and a forfeiture of $500, was inflicted on any bank, corporation, or individual, for each offence against its provisions.

The Act of 1835, enlarges the Act of 1832, by extending the prohibition to all but a certain description of hills, as well those above as those below the denomination of five dollars; and makes it more efficient and stringent, by substituting for the penalty of one hundred dollars, a fine of five hundred. The Act of 1835 includes every offence described in the Act of 1832, and creates new ones. Taken together, they prohibit, in toto, certainly, the emission or circulation of all change bills whatsoever. Let us turn now, to the repealing Act of 1851-2. It purports by its title, to be "An Act in relation to the issuing of change bills and private banking; for the punishment of the same, and to authorize the banks of this State to issue bills of certain denominations, and for other purposes."

The preamble most truthfully recites, as any one will disco-ver, who will search through the voluminous mass of legislation which the Code contains upon the subject of " Change Bills, Banks and Banking, " that, " Whereas, a great number of Acts have been passed by the Legislature on the subject of Change Bills and Private Banking, in which some contain provisions in conflict with others; some expressly repeal others; some impose taxes upon change bills, and thus are claimed to legalize the issue of such bills; and some are obscure and hard to be understood, whereby it has become difficult if not impossible to tell what the law is on the subject, to the great encouragement of such as are disposed to indulge in the practice of private banking; therefore,

" Sec. I. Be it enacted, " Sec. " That from and after the passage of this Act, no person or body corporate, shall make, issue, pay away, or put in circulation, any bill, or note, check, or other device, calculated or intended as a circulating medium, as money or instead of money, or to serve wholly or in part as money, except such person or body corporate shall have been previously authorized by law to issue the same."

" Sec. II. If any person or body corporate shall violate any of the provisions of the hist section of this Act, or shall aid in its violation, they shall be liable to be indicted therefor, and on conviction, shall, for every offence, be punished, in the case of a corporation, by a fine of not less than fifty nor more than five hundred dollars, at the discretion of the Court; and in the case of a natural person, by a fine of not less than fifty and not over five hundred dollars; or by imprisonment in the common jail of the County, for a period not over six months, at the discretion of the Court; but no person who is not concerned in the issue of any such bills or notes, shall be liable to any penalty for paying the same away or putting the same in circulation."

" Sec. III. Whenever the punishment shall be by fine, the proceeds shall be paid, after deducting the expenses of the prosecution, one-half to the informer, and the other to the County Treasury."

" Sec. IV. That the bills, notes, or checks, if paid away, or tendered in payment, contrary to the prohibitions of this Act, shall, notwithstanding anything contained in this Act, be valid and collectable the same as any other note, bill, or check, and shall be subject to taxation at the discretion of the Legislature; and Acts imposing taxes upon them shall not be considered as legalizing the making, issuing, paying away, or...