Elliott v. State

• Decision Date: 24 April 1893
• Citation: 17 S.E. 1004,91 Ga. 694
• Parties: ELLIOTT v. STATE.
• Court: Georgia Supreme Court

17 S.E. 1004

91 Ga. 694

ELLIOTT v. STATE.

Supreme Court of Georgia

April 24, 1893

Syllabus by the Court.

1. The body of a penal statute, when broader in its terms than the title warrants, cannot be narrowed by construction so as to make the statute good for what is embraced within the title unless the result thus arrived at will correspond with the real legislative intention. Thus, where the title of an act embraces "spirituous liquors" only, and the body extends to "intoxicating liquors of any kind or quality," and prohibits the sale thereof, it cannot be held that the legislature intended to prohibit the sale of only one kind, to wit, spirituous liquors.

2. Where the whole legislative intent as embraced in one and the same verbal expression contained in a penal statute cannot be enforced, because unconstitutional in part, the other part will not be enforced, unless it is reasonably certain that to enforce the latter as a separate and independent scheme or measure would correspond with the legislative will and purpose. In the present instance, it does not appear that the legislature designed or was willing to prohibit the sale of "spirituous liquors," except as part and parcel of the broader scheme of prohibiting the sale or all "intoxicating liquors." This broader scheme, being unconstitutional, because differing from the title of the act, must necessarily fail; and, as it is one and indivisible, all its parts fail with it.

Error from superior court, Wilcox county; C. C. Smith, Judge.

J. B Elliott was convicted of violating the liquor law, and brings error. Reversed.

E. F. Hinton, E. H. Cutts, and Hal. Lawson, for plaintiff in error.

Wm. Eason, Sol. Gen., for the State.

SIMMONS J.

1. The statute in question, in the body thereof, prohibited the sale in the county of Wilcox of "intoxicating liquors of any kind or quality," but the title embraced "spirituous liquors" only. Acts 1877, p. 343. For this reason it was held in the case of McDuffie v State, 87 Ga. 687, 13 S.E. 596, that the statute is inoperative as to liquors not spirituous. Whether it is valid as to matter covered by the title was not decided. The question in that case was simply whether an indictment was demurrable which charged in general terms the sale of intoxicating liquors, without alleging that they were spirituous; and the court held, in effect, that, as the statute could not properly extend to liquors other than those mentioned in the title, the indictment, in failing to allege that the liquors sold were of that kind, was not sufficiently certain. The validity or invalidity of a statute is not proper matter for decision, unless necessary to the adjudication of the case; and what was said in that case as to how an indictment might be framed so as to be sufficient under the statute is not to be understood as ruling that the statute itself is in any respect valid. We are now required to decide whether the statute, because of variance between the body and the title, is wholly inoperative and void, or whether it can be upheld in so far as relates to what is expressed in the title. For the solution of this question we must look to the legislative intent. Where it is not clear that the legislature intended to exceed the...