Tollison v. George

• Decision Date: 15 June 1922
• Docket Number: 2902.
• Citation: 112 S.E. 896,153 Ga. 612
• Parties: TOLLISON v. GEORGE, MARSHAL.
• Court: Georgia Supreme Court

112 S.E. 896

153 Ga. 612

TOLLISON v. GEORGE, MARSHAL.

No. 2902.

Supreme Court of Georgia

June 15, 1922

Syllabus by the Court.

No one of sections 1, 8, 12, 13, or 17 of the act approved August 17, 1920, to license and regulate the business of making loans, etc. (Acts 1920, p. 215), a violation of the provisions of which sections is declared to be a misdemeanor in another section of the act, covers the transaction charged as a crime in the affidavit upon which the warrant for the arrest of the applicant for the writ of habeas corpus was issued.

Whether section 20 of that act (Laws 1920, p. 222) renders it void or is in itself void because it contains matter different from what is expressed in the title of the act, it is unnecessary to decide, inasmuch as a failure upon the part of any one to observe the regulations of that section is not made penal and constitutes no crime.

The warrant under which the prisoner was arrested was based upon an affidavit setting forth certain acts of the accused which were in themselves not obnoxious to the statute with a violation of which the accused was charged. The warrant therefore, was void; and the applicant for the writ of habeas corpus should have been discharged.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Habeas corpus by O. L. Tollison against J. M. George, Marshal. Petition refused, and the petitioner brings error. Reversed.

R. R Jackson and John F. Echols, both of Atlanta, for plaintiff in error.

Wm. F Buchanan, of Atlanta, for defendant in error.

BECK P.J.

The plaintiff in error in this case was arrested by the defendant in error upon a warrant issued by one of the judges of the municipal court of Atlanta, which was based upon an affidavit made by one Adams, wherein the affiant deposed that one Duke made an application in writing "to sell to O. L. Tollison [plaintiff in error] an account" due the applicant for wages or salary already earned; and it is recited in the application that in order to induce Tollison to purchase said account it was represented and warranted that the applicant was 21 years of age, that the account was due and unpaid, etc., and that the transaction was an absolute and unconditional sale, and not a loan or advance of money, nor discount, nor was the applicant a debtor to the purchaser; that he agreed to take $10 for said account, and authorized the purchaser to sign receipts, acquittances, etc. It is also charged in the affidavit that Duke at the same time executed to Tollison a bill of sale and assignment in writing, which, in substance, recited that in consideration of the sum of $10 he did sell, transfer, and assign to Tollison his account for salary or wages earned during the month of October, 1921, amounting to $11, due by one Brockman, and Brockman was directed to pay over to Tollison the amount of the account. It is further recited in the affidavit that this is an absolute and unconditional sale of the account, etc., as recited before in the application. It is also charged in the affidavit that Tollison "had not made an application to the State Bank Examiner of said state, as provided by law of said act [act approved August 17, 1920, Georgia Laws 1920, p. 215]; neither had said Tollison made and executed a bond payable to the State Bank Examiner of said state and had the same approved by the State Bank Examiner of said state, as provided for in said act; neither had the said O. L. Tollison obtained a license from said State Bank Examiner to make loans, secured or unsecured, as provided for under the provisions of said act. Deponent further says that said O. L. Tollison did not comply with the provisions of section 20 of said act as to serving J. W. Brockman, the stakeholder named in said writings, with a verified copy of the bill of sale and assignment hereinbefore set out, but that said Tollison served said Brockman with a notice of the assignment." On October 22, 1921, plaintiff in error brought his petition for habeas corpus against J. M. George, marshal of the municipal court of Atlanta, the officer who made the arrest under the warrant referred to. Petitioner alleged that he was, at the time of bringing the petition for habeas corpus, in the custody of the marshal, and contended that, under the charges set out in the affidavit upon which the warrant was based, no crime was charged against petitioner for the violation of any criminal law of this state, and that the custody of the petitioner under the warrant is illegal, and that he is being deprived of his liberty contrary to law, etc. The respondent made answer to the petition, denying that the arrest was illegal, and that the custody by the marshal of petitioner is illegal. When the case was heard before the judge of the superior court, the petition was refused, and the petitioner remanded to the custody. Whereupon petitioner sued out this writ of error.

The affidavit which was the basis of the warrant under which the plaintiff in error was arrested does not charge the commission of a crime, and shows upon its face that the acts with which the defendant is charged are not a violation of any criminal statute of this state. Let it be observed that the affidavit does not merely charge the commission of a stated crime or misdemeanor in general terms, but sets forth specifically and in detail the transaction alleged to be a violation of a criminal statute, and specifically states the statute alleged to have been offended. The statute with the violation of which the accused is charged is one relating to the regulation of the loan business, and is entitled,

"An act to license and regulate the business of making loans in sums of $300, or less, secured or unsecured, at a greater rate of interest than eight (8) per centum per annum, prescribing the rate of interest and charge therefor, and penalties for the violation thereof; regulating the assignment of wages or salaries, earned or to be earned, when taken as security for any such loan, and for other purposes."

This statute has 21 sections. Sections 1 to 17, inclusive, deal with the business of making loans and the regulation of that business and with the regulation of "assignment of wages or salaries, earned or to be earned, when taken as security for any such loan." There is nothing in any of the sections from 1 to 17 indicating an intention upon the part of the lawmakers to make penal the absolute sale of choses in action and the making of a bona fide contract for such purchase or sale. So far as appears from the transaction which was reduced to writing and set forth in the affidavit under consideration, the transaction was not a loan, nor a partial assignment of an account, but was an absolute and unconditional sale of the applicant's salary or wages earned up to a certain date. It is not necessary to repeat the language of the contract and the application made by Duke in order to effect the sale. The fact that it was a sale appears upon a most cursory reading of the application. Section 18 of the act of August 17, 1920, under consideration, is the penal section of the act, and declares that any person violating the provisions of sections 1, 8, 12, 13, or 17 of the act shall be guilty of a misdemeanor and...