Code § 66-9901, which authorizes criminal prosecution and fine for failure to pay wages as therein described, offends the Constitution, art. 1, sec. 1, par. 21 (Code, Ann., § 2-121), which forbids imprisonment for debt, and is therefore void. The demurrer assailed the indictment brought under Code § 66-9901, upon the ground that the statute offends the constitutional inhibition against imprisonment for debt, and the trial court erred in overruling the same.

No. 17936. SUBMITTED JULY 14, 1952 — DECIDED SEPTEMBER 2, 1952.

C. G. Messenger, the plaintiff in error, was convicted of unlawfully and wilfully refusing to make payments of wages and earnings due a wage earner when demanded as required upon the regular days of payment, the above accusation being for a violation of Code § 66-9901 by an employer contemplated by Code § 66-102. Previously thereto, a general demurrer to the accusation was filed stating that the statutes under which the accusation was drawn are invalid and unconstitutional, for the reason that they are violative of the Constitution of Georgia which forbids imprisonment for debt (Code, Ann., § 2-121), class legislation (Code, Ann., § 2-125), and a deprivation of one's liberty without due process (Code, Ann., § 2-103). The demurrer was overruled and exceptions pendente lite were duly filed. On the trial, two wage earners testified that they were employed by the accused to clear land at a fixed hourly rate, but were not paid by him because "he said he couldn't pay because he did not have it," and because "he said he didn't have it." One of these witnesses then testified on cross-examination that he was later paid under a laborer's lien and the assistant solicitor-general, in a colloquy with the court, stated that all the wage earners who were witnesses in this case had been paid. Thereafter, a motion for new trial on the general grounds only was duly made and overruled, and the bill of exceptions here is to this final judgment and the exceptions pendente lite filed previously.

DUCKWORTH, Chief Justice.

The Constitution, art. 1, sec. 1, par. 21 (Code, Ann., § 2-121), declares: "There shall be no imprisonment for debt." This unambiguous language leaves no room for equivocation, exception, or doubt. It simply means that the sovereign people, speaking through its Constitution, commands the three departments of the government — legislative, executive, and judicial — and all officials of those departments to refrain from imprisoning a single person for debt. The Constitution is plain and the duty is clear. Nevertheless, the legislative department has enacted Code § 66-102, commanding certain employers to pay the wages of their employees twice a month; and then by Code § 66-9901 it has provided that, if any employer referred to in Code § 66-102 shall wilfully fail or refuse to make the payments therein required, he shall be sentenced to pay a fine not exceeding $200, and insolvency shall be the only defense to an indictment for such offense.

The solicitor-general points to the absence of any provision for sentence to prison and contends that the Constitution is not offended. The fact that criminal prosecution is authorized constitutes authority to imprison. To prosecute under this law requires the involuntary attendance of the accused upon the trial. This alone would constitute a degree of imprisonment forbidden by the Constitution. The arrest authorized by this law, no matter how short the time of its duration, would constitute imprisonment. Savannah Guano Co. v. Stubbs, 138 Ga. 409 ( 75 S.E. 433); 20 Words Phrases 291. And see Whittle v. Jones, 198 Ga. 538 ( 32 S.E.2d 94); Sanders v. McHan, 206 Ga. 155, 157 (2) ( 56 S.E.2d 281). The inhibition of the Constitution applies to any and all imprisonment for debt, irrespective of the period of its duration or the means whereby it is accomplished. A similar statute, in so far as objective is concerned, was held by this court, in Taylor v. State, 191 Ga. 682 ( 13 S.E.2d 647), not to offend the Constitution because it was for fraud rather than debt that it authorized imprisonment. That decision was reversed in Taylor v. Georgia, 315 U.S. 25 ( 62 Sup. Ct. 415), and in Taylor v. State, 193 Ga. 531 ( 19 S.E.2d 267). It is not the right of the servants of the people to question the wisdom of what the people writes into its Constitution but a solemn duty to observe and uphold it.

The above statute was timely attacked by the demurrer to the indictment on the grounds that it offends the Constitution, and it was error to overrule the demurrer. This ruling renders all subsequent proceedings nugatory and requires an order setting aside the verdict and judgment of conviction and sentence therein.

Judgment reversed. All the Justices concur, except Atkinson, P.J.; and Almand, J., not participating.