Hart v. Head

• Decision Date: 27 September 1938
• Docket Number: 12391.
• Parties: HART v. HEAD, Com'r of Roads and Revenues.
• Court: Georgia Supreme Court

199 S.E. 125

186 Ga. 823

HART v. HEAD, Com'r of Roads and Revenues.

No. 12391.

Supreme Court of Georgia

September 27, 1938

Error from Superior Court, Cobb County; J. H. Hawkins, Judge.

Suit by A. M. Hart against C. M. Head, Commissioner of Roads, etc for a writ of mandamus to compel defendant to issue plaintiff a permit to sell malt beverages. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Syllabus by the Court.

Where an application for a permit to sell malt beverages in terms of the act of March 23, 1935, was refused by the county authority, the applicant was not entitled to the writ of mandamus to compel the issuance of such permit.

A. L Henson, of Atlanta, for plaintiff in error.

Carmichael & Grove, of Marietta, for defendant in error.

BELL Justice.

Mrs Anna M. Hart filed a suit against C. M. Head, commissioner of roads and revenues of Cobb County, seeking the writ of mandamus to compel the defendant to issue to her a permit to sell malt beverages at a specified location in such county. The court sustained a general demurrer and dismissed the action, and the plaintiff excepted. The petition alleged substantially the following facts: In pursuance of the malt-beverage act of March 23, 1935 (Ga.L.1935, p. 73), the plaintiff had previously applied to the defendant, as the proper county authority, for a permit to sell malt beverages and her application had been refuse to him. As commissioner of roads and revenues of Cobb County the defendant had granted licenses to divers other persons to sell malt beverages in the county, and had promulgated rules and regulations governing the issuance of such permits. The plaintiff complied with each and all of these rules and regulations, and she is a fit and proper person to conduct such business, according to the admission and agreement of the defendant. The only reason for the rejection of her application was that the commissioner preferred that malt beverages should not be sold at the particular location, because to do so would make the property in that general section less valuable for residence purposes. The plaintiff's building and general property are peculiarly adapted for use as a tavern, having been constructed and improved for that purpose. The building is of a type that is unfit for any other purpose. There have been no published regulations which would authorize the commissioner to deny license to a business at this particular location, and the plaintiff acquired the property without knowledge that any such arbitrary rule would be applied to her.

The writ of mandamus will issue only to enforce a duty which is imposed by law. The law must not only authorize the act to be done, but must require its performance. Douglas v. Board of Education of Johnson County, 164 Ga. 271(4), 138 S.E 226; Sibley v. Park, 175 Ga. 846(2), 166 S.E. 212. The malt-beverage act of March 23, 1935, declares: 'The privilege of manufacturing, distributing and selling by wholesale or retail of beverages provided in this Act is purely a privilege and no business legalized by this Act shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits.' Ga.L.1935, p. 73, § 15A. The act does not grant to any one the right to a permit, but as to this matter refers only to a privilege, 'purely a privilege.' The plaintiff is dependent on this statute if she is to obtain a permit. The act confers on the county authorities the right to grant or refuse a license in...