Carmichael v. Banks , 102 Ga. 217 ( 1897 )

Little, J.,

dissenting. Under the constitution of this State, the Governor is invested with power to “ grant reprieves and pardons, to commute penalties, remove disabilities, and to remit any part of a sentence for offenses against the State,” etc.; and other than as so given, that officer has no power or authority to change or interfere with the sentence or judgment imposed as a punishment on persons convicted of crime; and as to fines imposed as punishments, the law provides for their disposition, when collected.

The act approved December 26,1890 (Acts 1890-91, vol. 1, p. 40, section 4) and that approved December 23, 1892 (Acts 1892, p. 27, section 4) created an offense against the State, made the same a misdemeanor and provided for the punishment of those who committed it; and'such offense is to be held and treated in all respects as other crimes and misdemeanors against the State. Accordingly, where one who was engaged in the business of selling spirituous liquors, on whom the law imposed a tax of one hundred dollars, failed to register as prescribed by law and also failed to pay such tax as was by these acts imposed, he was guilty of a misdemeanor, and the minimum punishment which could legally be inflicted on him by the judgment of a court was a fine of two hundred dollars.

The direction which the law gives as to the disposition of such fine when collected has nothing to do with the punishment of or penalty for the offense; and when an act of the General Assembly directs that one half of the fines collected in such, cases shall be applied to the tax and the other half to the fund of fines and forfeitures for use of officers of court, the question of the application of any part of such fines when collected is entirely beyond the power and prerogative of the Governor when he' attempts to exercise the power to pardon, reprieve, or commute penalties.

Where on application to the Governor, by a person tried and convicted of such offense and fined two hundred dollars, an executive order was passed in the following language: “Ordered that the sentence against G. S. Fincannon be and the same is hereby commuted to the payment of the tax of one hundred dollars and the costs in said case,” such order is in legal effect a commutation of the sentence of the applicant to a fine of one hundred dollars and costs, and under the law the commuted fine, when collected, should have been devoted one half' to the tax and the other half to the fund of fines and forfeitures; and therefore so much of said order as directed how the commuted fine should be disposed of, was, under the law, void, and the judgment of the court below in failing to so rule ought to be reversed.