Syllabus
by the Court.
1. This
court will not pass upon the constitutionality of an act of
the Legislature, unless it is necessary to a proper decision
of the case.
(a) The
Act of March 22, 1935 (Ga.Laws 1935, p. 327), known as the
Alcoholic-Beverage Control Act, was not intended to become
effective, in any part, as a repealing measure, independently
of the election provided for therein.
(b)
Whether or not the Legislature exceeded its constitutional
authority in submitting the act just mentioned, and the
Malt-Beverages (Ga.Laws 1935, p. 73) and Wine (Ga.Laws 1935
p. 492) Acts of March 23, 1935, to a vote of the people, or
failed to submit them to a constitutional electorate, the
provisions for referendum as contained in each of these acts
were so connected with the general scheme of the act that
effect could not be given to the legislation with such
provisions stricken; so, regardless of the validity or
invalidity of the referendum provisions, the demurrers
attacking these provisions as unconstitutional do not show
any reason for quashing the accusation in the present case.
(c) The
accusation charged the defendant with the offense of a
misdemeanor, for that in the county of Troup, on August 10
1936, he did 'unlawfully have, possess, and control
alcoholic and intoxicating wines, beers, liquors, whisky and
other beverages.' Whether or not the accusation stated an
offense with reference to wines, beers, and other beverages
besides whisky, there was no specific attack on these
portions of it, and it was sufficient in law as a charge of
possessing whisky, which is a penal offense in this State. It
was unnecessary to allege more in regard to having whisky
and the accusation as a whole was not subject to any of the
criticism contained in the demurrer.
2. The
special plea alleging in effect that the officials do not
impartially enforce the prohibition laws, but merely proceed
against persons against whom they have prejudice, and pay no
attention to other classes mentioned, did not state a legal
defense, and was properly stricken on motion.
3. The
charge of the court relating to the possession of wine, as
provided by the Wine Act of March 23, 1935, was not erroneous
on the ground that the court referred to this act
'without explaining to the jury the meaning of said act
and without telling them what the rule or rules were that had
been promulgated by the commissioner of agriculture with the
approval of the Governor and the commissioner of
agriculture.' Neither the State nor the defendant
introduced any such rule in evidence, and the court could not
have taken judicial cognizance of a rule so promulgated.
4. The ground of the motion for a new trial,
alleging 'that there is not any law in Georgia against
having, possessing, or controlling wines,' was based upon
an incorrect theory of the law, since at the time of the
alleged offense the possession of wines had not been
legalized in this State except as to wines produced from
Georgia fruits. Accordingly, this ground presented no valid
reason for granting a new trial.
5. The
accusation being sufficient to allege the offense of having
whisky, and the jury having returned a general verdict of
guilty, the judgment refusing a new trial should not be
reversed on the general grounds as quoted in the fifth
division of the opinion, merely because the accusation may
have charged some act which did not amount to an offense
under the law. There being some evidence to support the
verdict, and no reversible error being assigned, the judge
did not err in overruling the motion for a new trial.
David
Cone was charged with the offense of a misdemeanor, for that
in the county of Troup, on August 10, 1936, he did
'unlawfully have, possess, and control alcoholic and
intoxicating wines, beers, liquors, whisky, and other
beverages.' The defendant demurred to the accusation, on
the following grounds:
'(1)
Said accusation does not charge the defendant with anything
that is a violation of the law of Georgia.
'(2)
There is not any prohibition law in Georgia. The Act of the
legislature approved March 22, 1935, known as the
alcoholic-beverage control act (Acts 1935, p. 327), section
6, expressly repealed all the
prohibition laws of Georgia. It repealed all the law in
title 58 of the Code of Georgia, 1933 (section 58-101 et
seq.), and did not enact any law in place of the statutes
repealed.
'(3)
The concluding sentence in section 6 of said act being:
'All being under title 58, are hereby repealed.'
Then section 38 of said alcoholic beverage-control act
reads: 'Be it further enacted that should any section
or paragraph of this Act be declared illegal or
unconstitutional, that no other section or paragraph shall
be affected thereby, but the remaining provisions of this
Act shall have full force and effect.'
'(4)
For further demurrer, this defendant says that all of said
alcoholic beverage-control act providing for an election
and submitting the same to a vote of the people, and
especially section 36 of said act, is null and void, in
that the legislature of the State is the lawmaking power,
and under the Constitution of the State of
Georgia, article 3, § 7, par. 22, which reads: 'The
general Assembly shall have power to make all laws and
ordinances consistent with this Constitution, and not
repugnant to the Constitution of the United States, which
they shall deem necessary and proper for the welfare of the
State.'
'(5)
This defendant further demurs to said accusation, and
alleges that all of said alcoholic beverage-control act
relative to submitting the same to a vote of the people is
null and void under the Constitution of the United States
of America. Amendment 15, § 1, which reads as follows:
'The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition
of servitude.' Said act violates said section of the
Federal constitution, as follows, in that section 36 of the
act reads: 'The voters list used in such election shall
be the registered voters list used in the last General
Election. At such special election there shall be submitted
to the registered and qualified voters of this State,
qualified to vote at the last General Election, the
ratification or rejection of this Act.' This provision
disqualified all voters of the State that became eligible
to vote subsequently to the last general election
antedating this act, and up to Wednesday, May 15th, 1935.
'(6)
Defendant further demurs to said accusation, in that it is
null and void. It does not charge the violation of any law.
The malt-beverage act of March 23, 1935 (Acts 1935, p. 73),
and the wine-making referendum act of March 23, 1935 (Acts
1935, p. 492), and the alcoholic beverage-control act of
March 22, 1935 (Acts 1935, p. 327). All these acts in
reference to the provision to the referendum therein are
null and void, in that they are contrary to and in conflict
with the Constitution of the State of Georgia, article 2, §
1, par. 2, which reads as follows: 'Every male citizen
of this State who is a citizen of the United States,
twenty-one years old or upwards, not laboring under and of
the disabilities named in this Article, and possessing the
qualifications provided by it, shall be an elector and
entitled to register and vote at any election by the
people: Provided, that no soldier, sailor, or marine in the
military or naval services of the United States shall
acquire the rights of an elector by reason of being
stationed on duty in this State.' Code, § 2-602. These
acts are void in that they deprive every man and woman who
had not registered before the last general
election, and who had registered after the holding of said
general election on November 12, 1934, from exercising
their constitutional rights as voters who were otherwise
qualified to vote on the day of said election, May 15,
1935.
'(7)
All of said acts fail to provide provisions that said
election would have any effect whatever on section 6 of the
alcoholic-beverage-control act, which repealed all
prohibition statutes of this State. Section 6 of said act
being the only valid section of said act, and said section
being constitutional and clear to the effect that all of
said enumerated prohibition statutes are repealed, and
clearly showing that all other provisions of said acts
relating to the referendum are unconstitutional and of no
force and effect for the reason that such elections were
not elections of the voters, for the reason that the
disfranchisement of all voters who became qualified and
eligible after the last general election were not permitted
to vote.
'(8)
For further demurrer defendant says that all three of said
cited acts are severable, the exact language in the
malt-beverage act, section 2, being: 'Be it further
enacted by the authority aforesaid, that the provisions of
this Act are severable, and if any part thereof shall be
finally held unconstitutional the same shall not affect the
remaining parts thereof.' This leaves the
constitutional part of said acts
valid and the unconstitutional parts of said acts illegal
and void.
'(9)
This defendant specially demurs to the accusation, in that
it is insufficient in law, that it does not charge what the
defendant did, in what way he violated the prohibition law;
it does not charge that he sold or kept liquors, malt
beverages or wines, and, if so, to whom he sold it, and if
he kept it and transported it to the place is not alleged.
The
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