Bernstein v. Peters
| Decision Date | 29 October 1942 |
| Docket Number | 29745. |
| Citation | 22 S.E.2d 614,68 Ga.App. 218 |
| Parties | BERNSTEIN v. PETERS et al. |
| Court | Georgia Court of Appeals |
Gazan Walsh & Bernstein, of Savannah, for plaintiff in error.
Hester & Clark, of Savannah, for defendant in error.
J. A Peters and J. A. Goethe, doing business as Savannah Distributing Company, brought suit against Harry M. Bernstein to recover for certain intoxicating liquors sold and delivered to the defendant in Savannah, Georgia. The defendant filed an answer denying indebtedness, and by special plea set forth that recovery could not be had for stated reasons. The court sustained the plaintiffs' general demurrer to the plea but did not pass on certain special demurrers which they filed.
When the case came on for trial before the judge without the aid of a jury it was admitted between the parties that the liability, if any, was for intoxicating liquors in the amount of $1,052.76 sold and delivered on June 26, 1940, less a credit of $80, or a net amount of $972.76. The defendant made an oral motion to dismiss the action on the ground that it did not appear from the petition that the plaintiffs, at the time of the sale, were duly licensed by the State Revenue Commissioner of Georgia, as required by law, to conduct a wholesale business in intoxicating liquors in Chatham County in this State. Before the court ruled on the motion the plaintiffs tendered an amendment to the petition as follows "Plaintiff sells liquors at wholesale and is duly licensed as such dealer to sell such at wholesale by the proper governmental authorities of the Federal Government the State of Georgia, and the City of Savannah." The defendant objected to the allowance of the amendment on the grounds that (1) there was no allegation in the petition sufficient to support the amendment, and (2) that the amendment failed to show that the plaintiffs were legally licensed to engage in the business of wholesalers of intoxicating liquors at the time when the sale was made. The court allowed the amendment and overruled the defendant's motion to dismiss, and the amount of the alleged indebtedness, if recoverable, being admitted to be $972.76, the court, on motion of the plaintiffs, rendered judgment in their favor in that amount, plus interest and costs of court. The exceptions here are to the judgment sustaining the plaintiffs' general demurrer to the plea of the defendant, the allowance of the amendment, the overruling of the defendant's motion to dismiss, and the final judgment which, it is alleged, was necessarily controlled by the previous rulings.
In our view of the case it is controlled by the judgment overruling the defendant's motion to dismiss, and any discussion of the other exceptions is unnecessary. Whether or not the plaintiffs were entitled to recover depends upon whether or not the act of 1938, Ga.L.Ex.Sess., 1937-1938, 103, which is codified in the cumulative pocket part to the Code of 1933, Annotated, as section 58-1001 et seq., authorizing the sale of intoxicating liquors in this State under the conditions therein prescribed, was enacted, not merely as a revenue measure, but as controlling and regulating, in the interest of the public, the business of selling intoxicating liquors, and, if enacted for the latter purpose, and a license to do business be required, whether or not it is shown that the plaintiffs had obtained a license at the time of the sale in question.
In Southern Flour & Grain Co. v. Smith, 31 Ga.App. 52, 53, 120 S.E. 36, it was said:
In McLamb v. Phillips, 34 Ga.App. 210, 129 S.E. 570, it was ruled: "While statutes imposing license taxes and providing for their collection, when designed merely to raise revenue, as in the license of real estate agents, do not impliedly nullify contracts made in contravention of their provisions (Toole v. Wiregrass Development Co., 142 Ga. 57, 60-63, 82 S.E. 514), the general rule of law is that, where the license required by the statute is not imposed only for revenue purposes, but requires registration or licensing primarily for the purpose of protecting the public from acts mala in se, or detrimental to good morals, or from improper, incompetent, or irresponsible persons, as in the case of unregistered or unlicensed druggists or physicians, their imposition amounts to a positive prohibition of a contract made without a compliance with and in violation of the statute, and by implication renders such a contract void and unenforceable." (Citing.)
In Pratt v. Sloan, 41 Ga.App. 150, 153, 152 S.E. 275, 277, it was said: "It is the rule in this state that, where a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, and where it appears from the terms of the statute that it was enacted not merely as a revenue measure, but was intended as a regulation of such business in the interest of the public, contracts made in violation of such statute are void and unenforceable." See, also, Raleigh & Gaston R. Co. v. Swanson, 102 Ga. 754, 28 S.E. 601, 39 L.R.A. 275; Murray v. Williams, 121 Ga. 63, 48 S.E. 686; Lee v. Moseley, 40 Ga.App. 371, 149 S.E. 808; Meinhard v. Stillwell Realty Co., 47 Ga.App. 194, 169 S.E. 732. As far back as Taliaferro v. Moffett, 54 Ga. 150, 151, it was held: "The general rule of law is, that where a license required by statute, is for the protection of the public, and to prevent improper persons from acting in a particular capacity, and is not for revenue purposes only, the imposition of the penalty amounts to a positive prohibition of a contract made in violation of the statute."
Examining the act here involved, we think that the idea of control and regulation of the liquor traffic runs throughout its provisions. In the title itself it is stated that the act is to be known as the "'Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors;' to provide for the taxation, legalization, control, manufacture, importation, distribution, sale and storage of alcoholic beverages and liquors. *** to authorize the Revenue Commissioner to make rules and regulations for the *** controlling of the manufacture, sale and distribution of alcoholic beverages and liquors; *** to provide penalties and punishment for the violation of the terms of this Act," etc. Various provisions in the body of the act, which we shall refer to under...
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