City Of Fitzgerald v. Witchard

• Decision Date: 16 April 1908
• Citation: 61 S.E. 227,136 Ga. 552
• Parties: CITY OF FITZGERALD. v. WITCHARD et al.
• Court: Georgia Supreme Court

136 Ga. 552

61 S.E. 227

CITY OF FITZGERALD.

v.WITCHARD et al.

Supreme Court of Georgia.

April 16, 1908.

Intoxicating Liquors — License Fee — Abandonment of Business — Refunding Fee.

The mayor and council of the city of Fitzgerald received the prescribed fee, and in consideration thereof issued a license authorizing a person to engage in the sale of intoxicating liquors for the remainder of the year. Before the expiration of the time the General Assembly enacted a law providing for a higher license fee for the right to sell such liquor in the county of Irwin, including the city of Fitzgerald. See Acts 1906, p. 430. When the law went into effect, the licensee, without any interference or direction from the municipal authorities, ceased to engage in the sale of such liquors, and before the term expired applied to the municipal authorities for a return of so much of the money paid for his license as would be in proportion to the time in which he did not engage in selling such liquor. The application was not acted upon by the mayor and council during the term of the license; but, after the expiration of the term, successors to the mayor and council acted upon the application, and resolved to refund the money. Held, that a petition by citizens and taxpayers to enjoin the city authorities from refunding the money, alleging facts substantially as stated, was not open to general demurrer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 102.]

(Syllabus by the Court.)

Error from Superior Court, Ben Hill County; U. V. Whipple, Judge.

Action by S. M. Witchard and others against the city of Fitzgerald. Judgment for plaintiffs, and defendant brings error. Affirmed.

S. M. Witchard, S. G. Pryor, and H. A. Buckhart alleging themselves to be citizens and taxpayers of the city of Fitzgerald, instituted suit against the city of Fitzgerald, and alleged: The price for a license to retail whisky within the city of Fitzgerald, Ga., for the year 1906, was $1,000 per annum, payable $500 January 1st and $500 July 1st. On January 1, 1906, the city of Fitzgerald granted and issued to Wiley Williams, T. S. Glover, W. D. Barnett & Co., Gabe Lippman, E. T. James, Smith Bros., and Joe Stump, each, a license to retail whisky within the limits of the city for the year 1906, and each of them paid to the treasurer of the city of Fitzgerald $500 on January 1, 1906, and $500 on July 1, 1906, and the city issued licenses to them, authorizing them to retail spirituous and malt liquors in said city for the full period of 12 months, from January 1, 1906, to December 31, 1906. These licenses were not revoked during said term by the city of Fitzgerald, nor were any of them surrendered or delivered to the city; but each of said parties held, and were entitled, as far as the city of Fitzgerald was concerned, to all the rights and benefits arising under the licenses. Each of said parties, operating under the license granted to him, opened a place and carried on a retail whisky business in said city until August 11, 1906, when each ceased to engage in said business, without any interference or order or direction or fault of the city of Fitzgerald. During the year 1906...