Hawes v. Dinkler
| Decision Date | 21 November 1968 |
| Docket Number | No. 24859,24859 |
| Citation | 164 S.E.2d 799,224 Ga. 785 |
| Parties | Peyton S. HAWES, Commissioner v. Carling S. DINKLER, Jr., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Respondent's motion to dismiss the petition for the writ of certiorari is not meritorious.
2. The provisions of Ga.L.1937-38, Ex.Sess., p. 103 (Code Ann. Ch. 58-10), prohibiting sales of liquor on Sunday (Code Ann. §§ 58-1060, 58-1079) apply to sales of liquor in the unbroken package to be consumed off the premises as well as to sales of liquor for beverage purposes by the drink for consumption on the premises as provided by an amendment (Ga.L.1964, p. 771) to the 1938 Act.
Arthur K. Bolton, Atty. Gen., William L. Harper, H. Perry Michael, Melvin E. Thompson, Jr., Asst. Attys. Gen., Atlanta, for appellant.
Wesley Asinof, Henry Bowden, Harold Sheats, Atlanta, for appellees.
Carling L. Dinkler, Jr. and some fourteen others in their action against Herbert T. Jenkins, Chief of Police of the City of Atlanta, and others, alleging themselves to be holders of licenses from the City of Atlanta to sell in the operation of their businesses distilled spirits and alcoholic beverages by the drink for consumption on the premises, sought to restrain the defendants from interfering with their right to sell such beverages between the hours of midnight Saturday and 2 a.m. Sunday and prayed for a judgment declaring their rights under the city ordinance and the laws of the State.
Peyton S. Hawes, Revenue Commissioner of Georgia, alleging that he is charged with the duty of administering and enforcing the laws relative to the sale of alcoholic beverages in the State, filed his petition to intervene and to be made a party in said case. This petition was granted.
The defendants and Commissioner Hawes filed separate motions to dismiss the plaintiffs' petition. The trial court sustained all of these motions. The plaintiffs appealed this adverse decision to the Supreme Court of Georgia. This court, holding that it was without jurisdiction to entertain the appeal, transferred the case to the Court of Appeals. See Dinkler v. Jenkins, 223 Ga. 807, 153 S.E.2d 381. That court on a review of the case held (with four Judges dissenting) that the trial court erred in sustaining the defendants' and Commissioner Hawes' motions to dismiss the petition. Dinkler v. Jenkins, 118 Ga.App. 239, 163 S.E.2d 443. Commissioner Hawes filed his petition in this court for the grant of the writ of certiorari to the Court of Appeals. We granted the writ.
1. Carling L. Dinkler, Jr., respondent, moves to dismiss the petition for certiorari on the grounds (a) that there were fourteen additional party appellants in this case in the Court of Appeals who are not named as party respondents in this court and these are necessary parties for a review of the judgment of the Court of Appeals, (b) that Peyton S. Hawes, as State Revenue Commissioner, has no standing to complain of the judgment of the Court of Appeals and is not an 'aggrieved party', and, (c) that this court is without jurisdiction to entertain a petition for certiorari where only one appellee out of five appellees in the Court of Appeals complains of the judgment of the Court of Appeals.
None of these grounds show cause for the dismissal of the petition. (a) The only rules of procedure for reviewing a decision of the Court of Appeals by the writ of certiorari as authorized by Art. VI, Sec. II, Par. IV of the Georgia Constitution (Code Ann. § 2-3704) are Rules 47-57 of this court. See 220 Ga. 919-921.
Rule 49 provides in part:
The petition in this case for the writ of certiorari is entitled 'Peyton S. Hawes, as State Revenue Commissioner, vs. Carling L. Dinkler, Jr., et al.' and contains the certificate of counsel for petitioner, Commissioner Hawes, that he served a copy of the petition together with a notice of the date of the filing upon each of the fifteen appellants in the Court of Appeals by mailing a copy to their attorney of record. The record shows that Rule 49 was complied with and all of the parties in the Court of Appeals are now parties here.
(b, c) The motion to dismiss of Peyton S. Hawes, State Revenue Commissioner, having been sustained in the trial court and this judgment having been reversed by the Court of Appeals, Commissioner Hawes is an 'aggrieved party.' This judgment operates to his injury in his official capacity which charges him by law to administer and enforce the Alcoholic Beverage Control Act of 1938. Commissioner Hawes' right to petition this court for the writ of certiorari cannot be defeated because the other appellees in the Court of Appeals did not also petition for the writ.
2. The record in this case discloses that the right of anyone to sell alcoholic beverages in the State of Georgia whether by the package or by the drink is by virtue of the Act of 1938, as amended (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.' The Act as originally passed permitted the sale of such liquors only in packages and not by the drink. By referendum as provided for in the 1938 Act, said Act became effective in the City of Atlanta.
Section 14 of that Act (Ga.L.1937-38, Ex.Sess., pp. 103, 118; Code Ann. § 58-1060) provides: 'Any person who shall sell or offer for sale any spirituous liquors as herein defined on Sundays or election days shall be guilty of a misdemeanor and upon conviction shall be punished as for a misdemeanor as provied in section 27-2506.' (Emphasis supplied.)
Section 28 of the Act (Ga.L.1937-38, Ex.Sess., pp. 103, 123; Code Ann. § 58-1079) provides: 'It shall be unlawful to sell any liquor in any of the counties specified by this Chapter between the hours of 12:00 o'clock, midnight, on Saturday night, until the hour of 12:00 o'clock, midnight, on Sunday night, at any time and at any time on election days.
'It is the purpose and intent of this section to prevent the sale of liquor on Sunday and election days, and any violation of same shall be a misdemeanor by the buyer and/or the seller.' (Emphasis supplied.)
The 1938 Act was amended by Ga.L.1964, p. 771 (Code Ann. § 58-1083) by adding Section 31 which reads in part as follows: '(a) Anything in this Chapter to the contrary notwithstanding, every county in the State of Georgia where the sale of distilled spirits or alcoholic beverages is authorized by law and which such counties have a population of 40,000 or more, according to the United States Decennial Census of 1960 or any future such decennial census, and any city or municipality in that part of such cities lying within such counties may, through proper resolution or ordinance, authorize the issuance of licenses to sell...
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...to midnight. (Cits.).' Dinkler v. Jenkins, 118 Ga.App. 239, 247(2), 163 S.E.2d 443, 450. (Reversed on other grounds in Hawes v. Dinkler, 224 Ga. 785, 164 S.E.2d 799). Clearly, the General Assembly intended that a juvenile who is incarcerated after the court has had a preliminary detention h......
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...on Sunday morning. Appellant relies upon Dinkler v. Jenkins, 118 Ga.App. 239, 163 S.E.2d 443. That case was reversed in Hawes v. Dinkler, 224 Ga. 785, 164 S.E.2d 799. 2. One of the State's witnesses testified that on the two occasions in question, a Negro county police officer was present t......
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...on the premises, nor can such authority be found by construing the 1964 amendment in relation to the Act as required by Hawes v. Dinkler, 224 Ga. 785, 789, 164 S.E.2d 799. 1 Howhere in the amendment does it purport to amend Sections 8 and 9 of the Act which allow the Commissioner to issue o......
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