Hill v. Mayor of Dalton

• Decision Date: 08 April 1884
• Citation: 72 Ga. 314
• Parties: HILL v. THE MAYOR, ETC., OF DALTON.
• Court: Georgia Supreme Court

72 Ga. 314

HILL v. THE MAYOR, ETC., OF DALTON.

Supreme Court of Georgia.

April 8, 1884

February Term, 1884.

1. An accusation for selling spirituous, intoxicating or malt liquors within the corporate limits of a city, in violation of the municipal ordinance, was not rendered bad because it did not state to whom the liquor was sold.

2. A municipal ordinance which provided tat " no person or persons shall be allowed to sell any spirituous intoxicating, fermented or malt liquors in the incorporate limits of the city of Dalton, in any quantity, either directly or by selling any other commodity and giving away liquor, nor under any other device or disguise whatever," and imposed a penalty for its violation, did not provide for the same offense as §4565 of the Code, which prohibits the keeping of a tippling house or the retailing of spirituous liquors without a license. The former prohibits the sale, the latter only requires a license; nor are the two identical in respect to the class of liquors provided for.

( a. ) The city of Dalton had ample power to pass the ordinance in question.

( b. ) If the offenses were the same, general power existed prior to the constitutions of 1868 and 1877 in the corporate authorities to try for this offense; nor was the law unconstitutional because no provision was made for a jury trial for the violation of the municipal ordinance.

Criminal Law. Municipal Corporations. Constitutional Law. Before Judge FAIN. Whitfield Superior Court. October Term, 1883.

Reported in the decision.

T. R JONES; MCCAMY & WALKER, for plaintiff in error.

W. K MOORE; MCCUTCHEN & SHUMATE, for defendants.

JACKSON Chief Justice.

The plaintiff in error was accused, before the mayor of Dalton of the offense of selling spirituous, intoxicating, malt and fermented liquors within the limits of that city; the accusation charging that he did, on the 18th day of June, 1883, then and there sell intoxicating liquors, spirituous liquors, fermented liquors and malt liquors, each being severally charged by repeating his name and charging that he then and there did sell each sort of liquor. The proceeding was had under the following ordinance:

" *** No person or persons shall be allowed to sell any spirituous, intoxicating, fermented or malt liquors in the incorporate limits of the city of Dalton, in any quantity, either directly or by selling any other commodity and giving away the liquor, nor under any other device or disguise whatever. Any person or persons violating the provisions of this ordinance shall, upon conviction before the mayor or three members of the council, be fined for each offense fifty dollars, or in default thereof twenty days in the calaboose and twenty days' work on the public works of the city, or all these, in the discretion of the mayor or three members of the council."

Plaintiff in error was found guilty by the mayor, and brought the case before the superior court by writ of certiorari. The superior court, after a slight modification of the sentence, in regard to the marshal's costs, affirmed the mayor's judgment, and that affirmance is the error complained of here.

1. The accusation was demurred to, because it did not set out to whom the liquor was sold. This was unnecessary, and was not insisted upon in argument here.

2. The point relied upon here is, that the offense was within the crime of retailing spirituous liquors without a license under section 4565 of the Code, and the superior court therefore only had jurisdiction of the offense upon indictment of the grand jury, and the defendant had the right to be tried before a jury in that court. It seems to us that the principle ruled in Rothschild vs. The City of Darien, 69 Ga. 503, covers this case. There it was held that " a provision in a city ordinance making it penal to open any store on Sunday for the sale of merchandise of any kind or sort, works of necessity, etc., excepted," was not covered by the state law, and could be enforced. This was a well considered case, and authorities from prior decisions were all considered. The distinction between the ordinance and Sunday state law is there drawn.

In the case before us now, the ordinance of the city of Dalton providing for this offense is wholly unlike the provision of the Code cited-section 4565. That section declares:

" If any person shall keep a tippling shop, or sell by the quart, without the license and taking the oath prescribed in this Code, or sell by retail in quantities less than one quart, any wine, brandy, rum, gin, whiskey or other spirituous liquors, or any mixture of such liquors in any house, etc., or other place whatever, without license from ordinary of the county, or without license from the corporate authorities of any town or city, where by law authority to grant license is vested in the corporate authorities of such towns or cities, such person," etc.

So that the provision in the penal Code is wholly unlike, and makes different offenses from, that made by this ordinance. The Code makes it punishable to sell by the quart or retail without a certain oath and getting license from the corporate authorities, where they...