An Act (Ga. L. 1960, pp. 1122, 1123; Code Ann. 68-406.2) which has been held unconstitutional and void is not law, and an indictment and subsequent proceedings based thereon are void.
The grand jury of Twiggs County returned an indictment on June 26, 1967, charging William Frank hackney with the offense of "refusal to drive a motor vehicle on State scales" for weighing after being ordered and directed to do so by an employee of the State Highway Department. The indictment sought to charge a violation of Section 2 of Ga. L. 1960, pp. 1122, 1123 (Code Ann. 68-406.2).
The defendant's general demurrer asserted that the portion of Section 2 of said 1960 Act that provides if the operator of a motor vehicle sought to be weighed "shall refuse to stop upon proper order or to drive the vehicle upon the scales as directed," he shall be punished by a fine not to exceed $200, is violative of Art. I, Sec. I, Par. VI of the Georgia Constitution (Code Ann. 2-106) which provides: "No person shall be compelled to give testimony tending in any manner to criminate himself."
This demurrer was overruled, and upon the trial before the judge, both parties consenting to waive trial by jury, the defendant was found guilty and fined $50. In his appeal the defendant assigns error on the order overruling his demurrer and the sentence imposed.
This court in June of 1964, in Aldrich v. State, 220 Ga. 132 (137 SE2d 463)
held: "That portion of Ga. L. 1960, pp. 1122, 1123 (Code Ann. 68-406.2) which requires an operator of a motor vehicle to drive it upon the scales when ordered to do so by a State agent, or failing, to pay a fine of $200, is, in view of the provisions of Ga. L. 1941, p. 449, as amended (Ga. L. 1951, p. 772; 1955, p. 392; 1956, p. 83; 1959, p. 27; Code Ann. 68-405 and 68-9921), making the operator of a vehicle weighing more than therein provided, guilty of a crime, offensive to Art. 1, Sec. 1, Par. VI of the Constitution of 1945, and is void. It was error to overrule the demurrer to the accusation charging the accused with a violation of Ga. L. 1960, p. 1122, supra." It thus appears that at the time the indictment was returned in this case there was no law in existence which made it an offense for one to refuse to drive a motor vehicle on State scales for the purpose of weighing when ordered to do so by an employee of the State Highway Department. The indictment was void as were all subsequent proceedings. Green v. Hutchinson, 128 Ga. 379 (57 SE 353)
. The court erred in not sustaining the general demurrer and quashing the indictment.
The request to overrule Aldrich v. State, 220 Ga. 132
, supra, is denied.
Judgment reversed. All the Justices concur.