Dinkler v. Jenkins, 43392
| Citation | 163 S.E.2d 443,118 Ga.App. 239 |
| Decision Date | 26 June 1968 |
| Docket Number | No. 43392,2,3,Nos. 1,43392,s. 1 |
| Parties | Carling DINKLER, Jr., et al. v. Herbert T. JENKINS, Chief of Police |
| Court | United States Court of Appeals (Georgia) |
SYLLABUS BY THE COURT
1. A city ordinance providing that a license constitutes authorization by the city to engage in the sale of alcoholic beverages, and further providing that persons so licensed shall not engage in sales thereof between the hours of 2 a.m. Sunday and 9 a.m. Monday, authorizes licensees under the ordinance to sell alcoholic beverages from 12 midnight on Saturday until 2 a.m. on Sunday.
2. The phrase 'on the Sabbath day or Sabbath night,' as used in the statute (Code § 26-6105) prohibiting the keeping open of a tippling house during that time, embraces only the period from dawn on Sunday morning until midnight Sunday night and does not include the hours of darkness from midnight Saturday until dawn on Sunday.
3. The provisions of Ga.L.1937-38, Ex.Sess., p. 103, prohibiting sales of liquor on Sunday (Code Ann. §§ 58-1079, 58-1060) apply only to sales authorized by that Act, such as sales of liquor in the unbroken package to be consumed off the premises, and do not apply to sales of liquor for beverage purposes by the drink for consumption only on the premises as authorized by Ga.L.1964, p. 771, which empowers local governments to regulate the hours of sale.
4. A distinction in classification for hours-of-sale purposes between licenses for the sale of liquor in the unbroken package to be consumed off the premises and licenses for the sale of liquor for beverage purposes by the drink for consumption only on the premises is not arbitrary or unreasonable upon its face so as to deny the package store operator the equal protection of the laws.
5. An ordinance of the City of Atlanta, providing that licensees for the sale of liquor for beverage purposes by the drink for consumption only on the premises may remain open for business from 12 midnight Saturday to 2 a.m. on Sunday morning, is a valid exercise of the authority conferred by Ga.L.1964, p. 771.
Carling L. Dinkler, Jr., d/b/a Dinkler Plaza Hotel, and fourteen other plaintiffs brought suit against Herbert T. Jenkins, Chief of Police of the City of Atlanta, and various law enforcement officials of Fulton County and the Atlanta Judicial Circuit, seeking a temporary restraining order, interlocutory injunction, and declaratory judgment based upon the contention that plaintiffs are entitled to pursue their businesses of selling distilled spirits by the drink for consumption on the premises until 2 a.m. following midnight on Saturdays.
Omitting allegations pertaining to the propriety of the remedies sought, the petition alleges in substance as follows:
By virtue of Ga.L.1964, p. 771, any municipality lying within a county having a population of 40,000 or more in which the sale of alcoholic beverages is permitted by law is authorized to conduct a special referendum for the purpose of determining whether or not the sale of distilled spirits by the drink for consumption on the premises should be permitted. Among other things, the 1964 Act provides that cities holding a favorable referendum shall have the full power and authority to adopt all reasonable rules and regulations governing the qualifications and criteria for issuance of licenses to sell distilled spirits or alcoholic beverages for beverage purposes by the drink for consumption only on the premises and to promulgate reasonable rules and regulations governing the conduct of the licensees, including the regulation of hours of business. Pursuant to this Act the City of Atlanta conducted a favorable referendum and adopted an ordinance providing for the licensing of establishments to engage in the business of selling distilled spirits by the drink. The ordinance, attached to the petition as an exhibit, provides in section 30(d) that licensees for the sale of spirituous liquors by the drink shall not engage in the sale or permit the consumption of spirituous liquors between the hours of 2 a.m. Sunday and 9 a.m. Monday. It is alleged that the plaintiffs are licensed owners and operators of establishments in the City of Atlanta engaged in the business of selling distilled spirits and alcohol by the drink for consumption on the premises, and that defendants seek to close the establishments at 12 midnight on Saturdays.
The State Revenue Commissioner was allowed to intervene as a party defendant, and all defendants, with the exception of Police Chief Jenkins, filed general demurrers to the petition. From the sustaining of the demurrers and the dismissal of the petition, plaintiffs appealed to the Supreme Court. That court held that the case was not one within its jurisdiction and transferred it to this Court. Dinkler v. Jenkins, 223 Ga. 807, 158 S.E.2d 381.
Wesley R. Asionf, Leon S. Epstein, Atlanta, for appellants.
Arthur K. Bolton, Atty. Gen., William L. Harper, John A. Blackmon, Melvin E. Thompson, H. Perry Michael, Asst. Attys., Gen., Harold Sheats, John Tye Ferguson, Lewis R. Slaton, Solicitor Gen., J. Walter LeCraw, William E. Spence, Atlanta, for appellee.
The question raised by this appeal is whether plaintiffs may lawfully pursue their businesses of selling liquor for beverage purposes by the drink for consumption on the premises under their licenses from the city between the hours of midnight Saturday and 2 a.m. Sunday morning. The answer to this question must be determined by consideration of several State statutes and the municipal ordinance involved. For convenience in handling we set them out at the outset.
The first having a possible bearing on the case is the old tippling house statute, Code § 26-6105 (Ga.L.1865-6, p. 233), which provides: 'Any person who shall keep open a tippling house on the Sabbath day or Sabbath night shall be guilty of a misdemeanor. This statute, while archaic in language, is still in force in this State, the phrase 'tippling house' referring to 'one where intoxicating beverages, including beer and liquor, are served in small quantities to be drunk on the premises.' Bolden v. State, 88 Ga.App. 871, 874, 78 S.E.2d 368, 371. At this point in the history of our State, it was not unlawful to operate 'tippling houses' but it became so only if operated in contravention of the statute. Werner v. State, 51 Ga. 426, 427. In reviewing the history of our liquor laws, the brief of defendants Sheriff of Fulton County and Solicitor General of the Atlanta Judicial Circuit point out that 'the original prohibition of the Trustees of the Colony of Georgia against Some of the salient features of prohibition in this State, through the Act of 1938, may be found in the editorial note at the beginning of Code Ann. Title 58, Intoxicating Liquors.
The Act of 1938 (Ga.L.1937-38, Ex. Sess., p. 103; Code Ann. Ch. 58-10), known as the 'Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors,' is the second statute which must be considered on this appeal. Particular portions of this Act will be cited as they appear in Code Ann. Ch. 58. It provides for the exemption (see Code Ann. §§ 58-124, 58-306, 58-1078) from the general prohibition laws (see Code Ann. Ch. 58-1, 58-2, and 58-3) on a local option basis of counties where the voters vote in favor of permitting the manufacture, sale and distribution of alcoholic beverages and liquors, including distilled spirits, in accordance with the provisions of the Act. Code Ann. §§ 58-1004, 58-1008. The only types of licenses authorized (Code Ann. § 58-1023) are those to manufacturers (Code Ann. § 58-1024), wholesalers (Code Ann. § 58-1025) and retailers (Code Ann. § 58-1026). The retailer's license authorized only what is generally known as a 'package store,' and the sale of liquor by the drink for consumption on the premises remained unlawful not only because such sales were not exempted by the Act from the general prohibition laws but also were clearly excluded from the operation of the Act. Code Ann. § 58-1026 provides: 'A retailer's license shall authorize the holder to sell only in the original and unbroken package or packages, which package or packages shall contain not less than one-half pint of distilled spirits or alcoholic beverages each, and shall not permit the breaking of said package or packages on the premises where sold, and shall not permit the drinking of the contents of said package or packages on the premises where sold.' See also Code Ann. § 58-1011(f) defining 'retailer' or 'retail distributor.' Code Ann. § 58-1027 provides: 'It shall be unlawful for any retailer, as defined in this Chapter, to allow or permit the breaking of said package or packages on the premises where sold or to allow or permit the drinking of the contents of said package or packages on the premises where sold and any violations thereof shall be a misdemeanor, and the offender thereof shall be guilty of a misdemeanor, and, upon conviction, be punished as for a misdemeanor.' In addition Code Ann. § 58-1022(b) provides that it shall be mandatory on the State Revenue Commissioner, charged with the administration of the Act (Code Ann. § 58-1012), to revoke the license issued by him to anyone convicted of selling or serving...
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