Syllabus of the Court.
The act
of August 15, 1903 (Acts 1903, p. 90), entitled "An act
to make it illegal for any person to procure money, or other
thing of value, on a contract to perform services with intent
to defraud, and to fix the punishment therefor, and for other
purposes," is not repugnant to clause 1, § 14, art. 8
of the Constitution of the United States, which declares that
no state shall deny to any person within its jurisdiction the
equal protection of the laws.
That
the person contracted with, and for whom services are to be
performed, and from whom advances are alleged to have been
fraudulently procured, is permitted to testify, while the
person accused of having committed the offense described in
the act is not permitted to testify, does not render the act
obnoxious to the constitutional provision referred to in the
preceding note.
Nor is
the act unconstitutional because it does not on its face
declare what measure of proof shall be sufficient to overcome
the disputable presumption which it is declared in the second
section shall arise on proof of certain facts.
The act
in question is a general law, and is not in conflict with
paragraph 1, § 4, art. 1, of the Constitution of this state
which declares that laws of a general nature shall have
uniform operation throughout the state.
Nor is
it repugnant to paragraph 5 of section 1 of article 1 of the
Constitution of this state, which provides that the accused
shall have a public and speedy trial by an impartial jury, on
the ground that it declares that from proof of certain facts
a disputable presumption of fraudulent intent arises.
The act
of 1903 does not repeal section 1033 of the Penal Code of
1895, which provides that "on the trial of all criminal
cases the jury shall be the judges of the law and the
facts." Upon the whole case the jury still determines
the guilt or innocence of the accused. The establishment by
the Legislature of a rule for presuming intent, from acts
carrying such intent into effect, does not violate paragraph
17, § 7, art. 3, of the Constitution of the state, which
declares that "no law or section of the Code, shall be
amended or repealed by mere reference to its title, or to the
number of the section of the Code, but the amending or
repealing act shall distinctly describe the law to be amended
or repealed, as well as the alteration to be made."
Certified
by Court of Appeals.
Governor
Vance was convicted of fraudulently procuring money under a
contract of employment, and brings error. Certified to the
Supreme Court by the Court of Appeals. Answer certified.
Act
Aug. 15, 1903 (Acts 1903, p. 90), making it illegal to
procure money on a contract for services with intent to
defraud, does not violate Const. art. 3, § 7, par. 17
providing that no law shall be repealed by mere reference to
its title or the number of the section, but the law to be
repealed shall be distinctly described, since the Legislature
by establishing a rule for presuming intent into effect does
not work a repeal of Pen.Code 1895, § 1033, providing that on
a criminal trial the jury shall be judges of the law and
facts, since under such act the jury still determines the
guilt of the accused.
The
Court of Appeals certified to the Supreme Court the following
questions:
"It appearing to the court that the decision of a
constitutional question, within the purview of the
constitutional amendment creating the Court of Appeals, is
necessary to the proper determination of this case, to
wit:"
Is the act of the General Assembly, approved August 15, 1903
(Laws Ga. 1903, pp. 90, 91), entitled 'An act to make it
illegal for any person to procure money, or other thing of
value, on a contract to perform services with intent to
defraud, and to fix the punishment therefor, and for other
purposes,' either as a whole, or as to the second section
thereof, unconstitutional for any of the following reasons:
For that it is repugnant to and contravenes the following
portions of the Constitution of the United States, to wit
Clause 1 of section 14 of article 8 (contained in Civ. Code
1895, § 6030)--first, as to the portion of said article
wherein it is provided that 'no state shall deny to any
person within its jurisdiction the equal protection of the
laws,' upon the contention that, in the class of
contracts dealt with and contemplated by said act of 1903
the person or persons contracting to perform the services are
denied, as against the person or persons for whom such
services are to be rendered, the equal protection of the
laws, in that it subjects the former, under certain
contingencies, to prosecution and punishment, and at the same
time affords the latter absolute immunity from prosecution or
punishment by reason of any infraction of said contractual
obligations; also in that the person contracted with and for
whom services are to be rendered is permitted to testify to a
state of facts which by said act are declared to be
sufficient to carry the presumption of fraudulent intent,
whereas the accused is not permitted to testify, and under
said act has no opportunity or means equal to that afforded
to the person contracted with, and by said act such equal
means and opportunity are denied him, of proving that no
fraudulent intent existed at the time of making such
contract, or at the time of procuring money thereon, and no
measure of proof is by said act laid down by which such
presumption may be overcome.
Also for that it is repugnant to and contravenes paragraph 1
of section 4 of article 1 of the Constitution of the state of
Georgia (contained in Civ. Code 1895, § 5732), and especially
that portion of said constitutional provision as follows:
'Laws of a general nature shall have uniform operation
throughout the state,' etc., in that, while said act of
1903 purports to be a law of general nature, and essentially
is a law of general nature, under its terms and provisions it
is not a law of uniform operation throughout the state, in
that it singles out and deals with a given nature of
contracts, and prescribes, with reference to such nature of
contracts, different rules, different conditions, and
different penalties from all other contracts
of whatever nature; also in that it is not of uniform
operation upon all parties to such contracts as are dealt
with and contemplated by said act, but imposes greater
burdens, and subjects the person or persons who contract to
perform services to prosecution and punishment, under certain
conditions as named in the act as quoted, while affording to
the person or persons for whom such services are to be
performed absolute immunity from prosecution and punishment,
and placing upon them no burdens because of an infraction of
their contractual obligations; also that said act is not of
uniform operation, in that, grouping in a class, as it
necessarily does, citizens of this state who intercontract
for the performance of services, said act of 1903 works a
discrimination as against certain parties composing that
class, in favor of other parties of the same class, in that
it imposes on the person or persons contracting to perform
the services certain conditions, prosecutions, and
punishments, which it does not impose or inflict upon the
person or persons for whom such services are to be rendered.
Also for that said act of 1903, and particularly the
provisions of section 2 of said act, are repugnant to
paragraph 5 of section 1 of article 1 of the Constitution of
the state of Georgia (contained in Civ. Code 1895, § 5702),
and particularly that portion of said paragraph which
provides that the accused "shall have a public and
speedy trial by an impartial jury,' in that said act
arbitrarily fixes the measure of evidence by which the jury
shall presume guilt, whereas said constitutional provision
contemplates that the jury alone should determine that
question.
Also for that said act of 1903, particularly the provisions
of section 2 of said act, are repugnant to and contravene the
provisions of paragraph 17 of section 7 of article 3 (Civ.
Code 1895, § 5779) of the Constitution of Georgia, wherein it
is provided: 'No law, or section of the Code, shall be
amended or repealed by mere reference to its title, or to the
number of the section of the Code, but the amending or
repealing act shall distinctly describe the law to be amended
or repealed, as well as the alteration to be made'--in
that the provisions of said act of 1903, as in this ground of
exceptions set out and quoted, are directly in conflict with
section 1033 of the Penal Code of 1895 of Georgia, which
provides, 'On the trial of all criminal cases the jury
shall be the judges of the law and the facts, and shall give
a general verdict of "guilty," or "not
guilty,"DD' etc., and the provisions of said act of
1903 of necessity work a repeal, as to the class of
prosecutions within the purview of the act of 1903, of the
provisions of said section 1033 of the Penal Code of 1895,
and although said provisions of said act are in conflict with
and work a repeal pro tanto of said Code section, no
reference whatever to said Code section, against the
provisions of which said act militates, is made in said act
of 1903, and by the provisions of said act no attempt to
repeal the same, in the manner as pointed out by said
provisions of said Constitution, is made; and the provisions
of said act being directly in conflict with said provisions
of section 1033 of the Penal Code of 1895, in that by the
provision of the act the jury is directed what evidence will
carry a presumption of guilt, whereas, under the provisions
of said Code section, the jury is the sole judge of the facts
and of their probative value, said provisions of said
...
