Thompson vs. The State of Georgia.

No. 44.-JOHN D. THOMPSON, plaintiff in error, vs. THE STATE OF GEORGIA, defendant.

[1.] Where it appeared from the minutes of the Court of a particular day, that one of the Grand Jurors had been excused for the balance of the term, and, also, that a true bill had been returned, on the same day, by the Grand Jury against a defendant, in which the name of the excused Juror was inserted: Held, that the minutes of the Court did not afford even presumptive evidence that the bill of indictment was found by the Grand Jury, after the excused Grand Juror had left the body of his fellow Jurors, and was not sufficient to quash the bill of indictment.

Indictment, in Wilkes Superior Court. Tried before Judge BAXTER, September Term, 1850.

For the facts in this case, see the judgment of the Court.

BARNETT, represented by A. J. MILLER, for plaintiff.

Sol. Gen. WEEMS and CONE, for defendant.

By the Court.-WARNER, J. delivering the opinion.

Two grounds of error are assigned to the judgment of the Court below in this case.

[1.] First, because the Court refused to quash the indictment, on the ground, that it appeared on the minutes of the Court that Bowdrie, one of the Grand Jurors, had been discharged from further service on the Jury, during the term of the Court, and before the entry on the minutes of the Court of the return of the bill of indictment against the defendant. Second, because the Court refused to continue the cause, on the statement of the defendant, that he expected to be able to procure the testimony of said Grand Juror, that he had been discharged prior to the finding said bill of indictment by the Grand Jury.

We are of the opinion there was no error in the judgment of the Court below in refusing to quash the indictment. The entry on the minutes of the Court on the same day that a true bill

Thompson vs. The State of Georgia.

was found by the Grand Jury against the defendant, that one of the Grand Jurors, who had been sworn, was excused for the balance of the term, did not furnish even presumptive evidence against the presence of the Grand Juror at the time the bill was found by the body of which he was a member; especially when the name of the Juror was inserted in the bill of indictment. Although excused, it was the privilege of the Juror to avail himself of it, or not, as he might think proper. We will not control the discretion of the Court below in refusing to grant the continuance of the cause.

Let the judgment of the Court below be affirmed.

No. 45.-R. MCLEOD et al. trustees, &c. plaintiffs in error, vs. HENRY K. BURROUGHS, defendant.

[1.] A legislative exposition of a doubtful law, is the exercise of a judicial power, and if it interferes with no vested rights-impairs the obligation of no contract, and is not in conflict with the primary principles of our social compact, it is in itself harmless, and may be admitted to retroactive efficiency; but if rights have grown up under a law of somewhat ambiguous meaning, then it cannot interfere with them. The construction of the old law belongs to the Courts.

[2.] The Legislature, in a charter, declares "that it shall not be lawful for any person or persons, at any time or times, to build any bridge, or keep any ferry, on the river Great Ogeechee, within five miles, either above or below another bridge on the same stream:" Held, that the distance of five miles is to be measured on the course of the river.

[3.] Grants of exclusive privileges to corporations or individuals, are to be strictly construed; and if the terms of the contract between the individual, or the corporation, and the State, are ambiguous, the ambiguity must operate in favor of the public.

Injunction, in Chatham Superior Court. Decision by Judge H. R. JACKSON, February 20, 1850.

McLeod and others vs. Burroughs.

ready vested under it. It is not retroactive, because no one is affected by it. It becomes a new rule, and, like any other law, is obligatory upon the Courts and the people. It is not my purpose to say, that in no case can the Legislature rightfully pass a retroactive law; nor do I find it necessary to advert to the distinctions which obtain upon this subject, further than to refer to the rule as settled by this Court in Wilder vs. Lumpkin. In that case we hold, that "a legislative exposition of a doubtful law is the exercise of a judicial power, and if it interferes with no vested rights, impairs the obligation of no contract, and is not in conflict with the primary principles of our social compact, it is in itself harmless, and may be admitted to retroactive efficiency; but if rights have grown up under even a law of somewhat ambiguous meaning, then the universal rule of our system—indeed of the English system of government, and of other systems which approximate to free government-applies. That rule is, the Courts declare what the law is, the Legislature declares what the law shall be." 4 Geo. R. 212. The Act of 1806 is a contract between the grantee, Hill, and the Legislature; both parties are bound by its stipulations; what its meaning is, is for the Courts to determine. The grantee proceeds to invest under it according to his understanding of its provisions. He does so at the peril of a different construction by the Courts; they can only act where a case is made. But he is not subject to the peril of legislative constructions; if he were, then charters and grants would be but a mockery. Who would accept a charter if it was subject at all times to legislative construction; that is to say, subject to be impaired by law? No sane man, or half-witted set of men. The power to sit in judgment upon his own contracts by one of the parties, is no where conceded under any system of free government; that would be an enormity at which justice revolts. The Legislature cannot impair the obligation of its own contracts. In our construction, therefore, of the Act of 1806, we lay out of view altogether the declaratory Act of 1841.

[2.] The argument, which it is admitted outside of the courthouse, is very strong in favor of the construction of the 5th section of the Act of 1806, claimed by the plaintiffs in error, is