Glover v. State

• Decision Date: 08 November 1906
• Citation: 55 S.E. 592,126 Ga. 594
• Parties: GLOVER v. STATE.
• Court: Georgia Supreme Court

55 S.E. 592

126 Ga. 594

GLOVER v. STATE.

Supreme Court of Georgia

November 8, 1906

Syllabus by the Court.

An indictment which charges the offense defined by a legislative act in the language of the act, where the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which he is charged, is sufficiently specific.

The title of the act approved August 10, 1906, "An act fixing the annual license fee for retailing or vending spirituous, intoxicating, or malt liquors, in Irwin county at twenty thousand dollars, and to provide a penalty for violating the same, and for other purposes," is broad enough to provide for a license fee for the sale of such liquor in any quantity.

The title of the act referred to in the preceding headnote expresses a legislative intent to regulate the sale of spirituous, intoxicating, or malt liquors in Irwin county and the territory of incorporated towns located in that county is within the provisions of the act.

Whenever the Legislature passes an act and applies its provisions to the entire territory of a county, inconsistent provisions in the charter of an incorporated town located within that county are repealed by necessary implication.

The item in the Political Code 1895, § 421, "To sell liquors, $25.00," and the provisions of the same Code, § § 1519, 1535, 1536, 1537, 1538, 1540, and of the Penal Code 1895, § § 431, 433, are to be construed in pari materia; and when construed together they will not be regarded as prescribing such a general law for the license of spirituous intoxicating, or malt liquors, and fixing a license fee to sell the same, the existence of which will preclude the General Assembly from enacting a local law fixing the license fee in a named county, on the ground that such local law is violative of that clause of the Constitution which declares that "no special law shall be enacted in any case for which provision has been made by an existing general law."

So much of the Irwin county liquor act, approved August 10, 1906, as includes domestic wines in the category of the liquors, the sale of which may be licensed by the county authorities, is inoperative, because the wine act (Acts 1904, p. 98) conferring on municipalities the power to license the sale of domestic wines in quantities of not less than a quart, not to be drunk on the premises within the municipality, is a general law. Inasmuch as this unconstitutional feature may be disassociated from the act without interfering with the general legislative design, the local act will not be held void in its entirety on this account.

The fifth section of the Irwin county liquor act discriminates against wines made outside of the state, but the effect of the omission to exempt from license wines made outside of the state is not to render the act invalid, but to place all wines on the same basis whether made within or without the state.

The presiding judge allowed the defendant to introduce evidence to support his plea that the license fee fixed in the act was so large as to be prohibitive, and that, therefore, the local act contravened the constitutional provision forbidding special legislation where there is an existing general law viz., the general local option liquor law. Even if a legislative act can be declared unconstitutional by the finding of a jury on the facts of a particular case, the evidence submitted did not necessarily constrain a finding that the license fee was prohibitory.

Error from Superior Court, Irwin County; J. H. Martin, Judge.

T. S. Glover was convicted of a violation of the liquor law, and brings error. Affirmed.

Whenever the Legislature passes an act and applies its provisions to the entire territory of a county, inconsistent provisions in the charter of an incorporated town within the county are repealed by implication.

The plaintiff in error, T. S. Glover, was tried for the offense of selling liquor without a license, under an indictment framed upon a special statute approved August 10, 1906, entitled "An act fixing the annual license fee for retailing or vending spirituous, intoxicating, or malt liquors, in Irwin county at twenty thousand dollars, and to provide a penalty for violating the same, and for other purposes." Acts of 1906, p. 430. This act provided that from and after its passage "the annual license fee to retail or vend spirituous, intoxicating or malt liquors, in any quantity, in the county of Irwin, in this state, or in the incorporated cities, towns or villages in said county," should be $20,000, and that "neither the county authorities in the county of Irwin, nor the municipal authorities of any incorporated city, town or village in said county of Irwin, [should] grant or issue license to any person to retail or vend spirituous, intoxicating or malt liquors in any quantity anywhere in said county of Irwin, until the person applying" for a license should pay "into the county treasury said license fee of twenty thousand dollars," and give the bond and take the oath "required by law for retailers of spirituous liquors," and otherwise comply with "the general law in reference to the retailing or vending of such liquors; and any license granted or issued without the payment of said twenty thousand dollars, and without a full compliance with the requirements of this act and the general law [should] be null and void." The act also set forth the following provisions: The "words "spirituous, malt or intoxicating liquors,' as used in this act, shall be construed to mean and embrace all and every kind of distilled spirits, malt liquors, wines, beers, ciders and drinks, which, if drank to excess, will produce intoxication. *** It shall be unlawful for any person, by himself or agent, either directly or indirectly, to sell, barter, exchange, furnish or supply spirituous, intoxicating or malt liquors in any quantity in said county of Irwin for a valuable consideration, or to give away any such liquors for the purpose of inducing trade, without first paying said license;" but "nothing in this act shall be construed to prevent the sale or to require said annual license fee for the sale of domestic wines, made in said county, or for the sale of wine for sacramental purposes." The act further provided that any violation of its provisions should be a misdemeanor, and should be punishable as such. The indictment charged that the accused, on the 11th day of August, 1906, "with force and arms, and without the license from the proper authority authorized by law to grant license for the sale of such liquors in said county of Irwin, and without having paid into the county treasury of said county of Irwin the license fee of $20,000 as required by the local act of the Legislature approved August 10, 1906, and without a license from the corporate authorities of any town or city issued in accordance with the provisions of said local act of the Legislature, whereby lawful authority to grant such license is vested in such corporate authorities, did unlawfully sell and vend certain quantities of whisky, alcoholic liquors, mixtures of such liquors, and malt liquors, contrary to the laws of said state," etc. The accused demurred to the indictment generally, on the ground that it set forth no penal offense, and also specially, because it failed to allege a sale of liquor by retail or in a quantity less than a quart, and because the act which the accused was charged with violating was, for various reasons assigned, unconstitutional. By way of special plea the accused set up the defense that the license fee of $20,000 was prohibitive, and therefore the local act of 1906 was unconstitutional, being in its practical effect and operation, in direct conflict with the general local option law. The demurrer was overruled, and the case was submitted to the presiding judge for determination without a jury, upon an agreed statement of facts and certain evidence which the accused offered, in connection with his statement, to show that the business of selling liquor in Irwin county could not be successfully carried on if burdened with a license fee such as was prescribed by the local act. In the agreed statement of facts it was admitted that the accused did on the date charged in the indictment, without first paying the license fee of $20,000, sell at retail certain spirituous and other intoxicating liquors, as therein charged, but that he had previously obtained a liquor license for the year 1906 from the town of Fitzgerald, granted in accordance with the terms of its charter, and had, before doing business thereunder, complied with all the state and federal regulations then of force. The judge found that the accused had violated the provisions of the act of 1906, and passed sentence upon him accordingly, and exception is taken to this finding, as well as to the ruling upon the demurrer.

Haygood & Cutts, Candler, Thompson & Hirsch, and W. I. Heyward, for plaintiff in in error.

E. D. Graham, Sol. Gen., and Smith, Berner, Smith & Hastings, for the State.

EVANS, J. (after stating the facts).

1. The first and second grounds of the demurrer are that the indictment sets forth no offense, and fails to allege that the sale of intoxicating liquors was by retail or in a quantity less than a quart. The indictment charged the offense in the language of the local act fixing the license fee for retailing or vending spirituous, intoxicating, or malt liquors in Irwin county, and fixing a penalty for violating the same. If that local act is not unconstitutional for any of the reasons assigned in the demurrer or the bill of exceptions, then an indictment which charges the offense defined by the act, in the language of the act, where the description...