Carr v. City Council of Augusta
| Decision Date | 09 November 1905 |
| Citation | 52 S.E. 300,124 Ga. 116 |
| Parties | CARR v. CITY COUNCIL OF AUGUSTA. DELANEY v. CITY COUNCIL OF AUGUSTA. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When a municipal council acts in a legislative, executive, or ministerial capacity, its action is not subject to review on certiorari.
When a municipal council acts in a judicial capacity, its action is subject to review on certiorari.
The authorities of a municipality may revoke a license to sell liquor granted by them at any time without trial or notice and when a revocation of such license is thus accomplished it is in the exercise of the executive powers of the municipality, and the action is not subject to review on certiorari.
When a charter of a municipal corporation contains the usual general welfare clause, and confers the power to control and regulate the sale of liquor, the authorities of the city may pass an ordinance providing that the conviction of a holder of a license to sell liquor in a court of competent jurisdiction of any violation of the law regulating the sale of liquor shall work a revocation of the license.
When the ordinance of the charter indicated in the preceding note provides that the clerk of council shall submit to council "each and every conviction," the ordinance contemplates that evidence of the conviction shall be submitted by the clerk before action is taken revoking the license.
In determining whether the evidence submitted is sufficient to authorize a revocation of the license under the ordinance the municipal council acts in a judicial capacity, and its judgment is subject to review on certiorari.
A municipal council cannot justify a revocation of a license to sell liquor under its general power to revoke such license at pleasure, when it appears from the resolution revoking the license that the same was not passed in pursuance of its general power, but apparently under the authority of an ordinance declaring a given act to be a sufficient cause for revocation.
The judge should have required the municipal council to file an answer to the allegation in the petition for certiorari that there was no evidence before it as to the conviction of the parties whose licenses were revoked. Upon the coming of such answer, he should have determined whether the evidence before it, if there was such, was sufficient to authorize the passage of the resolution; the resolution being in the nature of a judgment declaring the license forfeited.
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Application of James Delaney for writ of certiorari to the city council of Augusta and by one Carr for the same. Writs denied, and petitioners bring error. Reversed.
Saml. H. Myers, N.M. Reynolds, and Salem Dutcher, for plaintiffs in error.
C Henry Cohen, for defendant in error.
The city council of Augusta granted a license to sell liquor to the firm of Delaney & Co., of which James Delaney was a member, and also granted a similar license to Carr. After the licenses were granted, and before they had expired, the city council passed an ordinance making it the duty of the council to declare the forfeiture of any license if the dealer should be convicted, in any court of competent jurisdiction, of a violation of any federal, state, or municipal regulation governing the sale of liquor, and imposing it as a duty upon the clerk of the council to submit to the council each and every conviction, as above indicated, of every person holding a license from the city. The clerk reported that Delaney and Carr had each been convicted in the city court of Richmond county for violation of the state law governing the sale of liquor, and the council passed a resolution declaring the licenses held by Delaney and Carr forfeited, the forfeitures to take effect 10 days after the passage of the resolution. While the ordinance did not provide that notice of the intention to revoke should be given to the party holding the license, the council permitted Delaney and Carr to be heard through their attorneys before the resolution was passed. Delaney and Carr each applied for the writ of certiorari to review the action of the council in passing the resolution revoking the licenses. The petition was sanctioned, and at the hearing the judge dismissed each petition, and each of the defendants excepted.
In each petition it is alleged that, at the time the resolution forfeiting the license was passed, the council had before it no evidence of the fact recited therein. This allegation was denied in the answer to the certiorari as originally filed. Upon exception to this the denial was stricken, and then an exception was filed to the answer because the allegation was not answered at all. The council demurred to this exception, upon the ground that it was not necessary for an answer to be made to such an allegation, and this demurrer was sustained. Each bill of exceptions contains an assignment of error upon the striking of the exceptions just referred to and upon the dismissal of the petition.
It is said that the petition was properly dismissed for the reason that a proceeding of a municipal council could not be reviewed by certiorari. But the Code declares that the writ of certiorari will lie for the correction of errors committed by justices of the peace, corporation courts, and councils and any inferior judicatory, or any person exercising judicial powers. Civ. Code 1895,§ 4634. It is therefore to be determined whether a municipal council, when proceeding to...
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