Delaney v. Plunkett
| Decision Date | 24 February 1917 |
| Docket Number | (No. 288.) |
| Citation | 91 S.E. 561,146 Ga. 547 |
| Parties | DELANEY et al. v. PLUNKETT, Sheriff. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
The acts of the General Assembly approved November 17 and November 18, 1915, hereinaft-er called the prohibitory laws or statutes (Laws Ex. Sess. 1915, pp. 77, 90), being acts to prohibit the manufacture, sale, keeping, etc., of intoxicating liquors, and containing, among other provisions, an inhibition against keeping intoxicating liquors in any place of business or public place, and also against the keeping of such liquors in excess of given quantities in any place whatsoever, are valid exercise on the part of the legislative body of the police power.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 21-23.]
The restriction as to amount of intoxicating liquors that a citizen is allowed to keep in a building used solely as a dwelling or residence is not unconstitutional.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 21-23.]
Construing these prohibitory laws in connection with the existing laws, liquors of the prohibited classes cannot be kept at all in certain places, cannot be kept in excess of limited quantities anywhere, and cannot be sold; and where such liquors are kept in excess of the quantities allowed, the keeping or possessing of them is unlawful. The qualities of property theretofore existing in them were taken away, and it was competent for the Legislature to declare that they should be seized, condemned, and destroyed upon order of the judge of the court having jurisdiction; and such provision was a valid exercise of the police power of the state, and not unconstitutional on the ground that it did not provide for a hearing.
[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 764; Intoxicating Liquors, Cent. Dig. 28, 138 1/2, 139.]
These prohibitory laws are not unconstitutional on the ground that they hinder, impede, and interfere with the power of Congress to regulate interstate commerce.
[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 92.]
These laws are not ex post facto in their character nor retroactive.
[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 530, 535.]
The act approved November 17, 1915 (Acts 1915, p. 77), is not unconstitutional on the ground that it contains matter different from what is expressed in its title.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 147-149.]
(Additional Syllabus by Editorial Staff.)
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Separate actions for injunction by Matthew Delaney, P. C. Carr, E. M. Green, and A. A. Hett, Jr., against J. T. Plunkett, Sheriff of Richmond County. Judgment for defendant dissolving temporary restraining order and refusing the injunction, and each of the plaintiffs brings error. Affirmed.
On May 27, 1916, Matthew Delaney, P. C. Carr, E. M. Green, and A. A. Hett, Jr., each presented his petition praying for injunction against J. T. Plunkett, sheriff of Richmond county. Delaney alleged:
That the house in which he resided was a dwelling house in the city of Augusta, used solely as a dwelling house by him and his family; "that, having been notified that the prohibition law of the state would go into effect on the 1st of May, 1916, he had stored in his said residence, in the attic thereof, and sealed up, the following described spirituous liquors: 59 cases of whisky; 2 broken cases whisky; 17 ten-gallon jugs of whisky; 3 five-gallon jugs whisky; 34 casks beer (2 broken); 23 drums whisky; one half-barrel wine—remnants of a stock, and this was stored at said house for his own personal use, and for service of such liquors in his private residence in social intercourse such as he might determine, and was not stored there at such residence or kept at said dwelling either for sale or for any unlawful purpose whatsoever, nor were said liquors bought for the purpose of being stored at said place in anticipation of said law going into effect, but a great part of said liquors he had on hand long before the passage of the said prohibition law by the General Assembly of Georgia in November, 1915."
Petitioner is the owner of the personal property described; and while in the lawful possession of the same, on May 27, 1916, certain police officers, during his absence, came to his residence, and, exhibiting some warrant of search to his wife, proceeded to search the house under the warrant, removed therefrom the liquors described above, and carried them to the courthouse of the county, where, pursuant to the direction of the chief of police the liquors were delivered to the sheriff, to be disposed of by him as might be directed by the judge of the city court; and thereafter the judge of that court, without a trial or hearing, passed an order directing the sheriff to destroy all of the liquors. Said liquors were purchased in pursuance of petitioner's right as a citizen of the United States prior to May 1, 1916, and to be used in his own private residence in ordinary social intercourse between himself and his friends, for which no payment was to be made; and this property has been illegally removed and condemned, as above stated, and is about to be destroyed by the sheriff, and will be destroyed unless he is enjoined. Petitioner has never been arraigned, tried, or convicted of any offense whatever connected with or touching said liquors or any other whiskies.
P. C. Carr's petition was to restrain the sheriff from destroying 13 broken barrels of whisky, 56 barrels of whisky, 96 cases of whisky, 1 barrel of gin, one demijohn of gin (broken), and one broken case of whisky.
Those liquors certain police officers of the city of Augusta, on May 18, 1916, after breaking into a private building appurtenant to the residence of Carr, seized and delivered to the sheriff, who was about to destroy them under an order of the judge of the city court. Green and Hett, each of whom had in his possession numerous casks and cases of the prohibited liquors, made similar complaints against the sheriff. The court granted a temporary restraining order in each case, requiring the sheriff to show cause, etc. On the hearing the sheriff, without filing an answer, urged a general demurrer. Upon considering the petition and the demurrer, the court dissolved the temporary restraining order and refused the injunction; and each of the plaintiffs excepted.
D. G. Pogarty and C. Henry & R. S. Cohen, all of Augusta, for plaintiff in error Carr. W. K. Miller, of Augusta, for plaintiff in error
Delaney. Saml. H. Myers, C. A. Picquet, and L. L. Battey, all of Augusta, for plaintiffs in error Green and Hett. W. Inman Curry, of Augusta, and T. B. Pelder, of Atlanta, for defendant in error.
BECK, J. (after stating the facts as above). It is unnecessary to take up each of the four cases stated above and deal with them separately. Most of the questions raised for adjudication by these bills of exceptions are common to all of the cases, and a question raised in one or more of the bills of exceptions which is not common to the others will be dealt with separately. Before deciding the point raised in one or more of the bills of exceptions that the petitioner had not violated the provisions of the act approved November 17, 1915, which relates to intoxicating liquors, prohibiting the manufacture, sale, keeping, etc. (Georgia Laws, Extraordinary Session 1915, p. 77), nor the provisions of the act approved November 18, 1915, relating to intoxicating liquors, prohibiting the delivery, reception, keeping, etc. (Georggia. Laws, Extraordinary Session, p. 90), we will consider and dispose of the contentions that these two statutes (which will be hereinafter referred to as the act of November 17 and the act of November 18, 1915, respectively, and as the prohibitory laws or statutes when the two acts are considered and referred to collectively) are unconstitutional and void, because in material particulars they are offensive to indicated portions of the state and federal Constitutions.
Whether the prohibitory acts of 1915 are invalid because they offend the provisions of the Constitution of the United States, or that of the state of Georgia, in the particulars indicated in the pleadings of the plaintiffs, depends upon whether those acts were a valid exercise of the police power of the state. The right of the state, under the police power, to regulate, restrain, or forbid the manufacture or sale of intoxicating liquors, has been recognized and proclaimed by the courts of last resort in many of the states of the Union, and by the Supreme Court of the United States. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; In re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; Foster v. Kansas, 112 U. S. 201, 5 Sup. Ct. 8, 97, 28 L. Ed. 629; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Southern Express Co. v. Whittle (Ala.) 69 South. 652, L. R. A. 1916C, 278; Ex parte Crane, 27 Idaho, 671, 151 Pac. 1006; Glenn v. Southern Express Co., 170 N. C. 286, 87 S. E. 136; Preston v. Drew, 33 Me. 558, 54 Am. Dec. 639; Henderson v. Hey ward, 109 Ga. 373, 34 S. E. 590, 47 L. R. A. 366, 77 Am. St. Rep. 384. In the case last cited it is said:
Another Georgia case laying down the same general doctrine and bearing...
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