Hill v. The Comm'rs Op The Town Of Decatur

• Citation: 22 Ga. 203
• Decision Date: 31 March 1857
• Docket Number: No. 42.,42.
• Parties: William M. Hill, relator, plaintiff in error. vs. The Commissioners op the Town of Decatur, defendants in error.
• Court: Supreme Court of Georgia

22 Ga. 203

William M. Hill, relator, plaintiff in error. vs. The Commissioners op the Town of Decatur, defendants in error.

No. 42.

Supreme Court of the State of Georgia

MARCH TERM, 1857.

Mandamus, from DeKalb Superior Court. Decision by Judge Bull, at chambers, February, 1857.

This was an application by William M. Hill, the relator, for a mandamus against the Commissioners of the town of Decatur, in the county of DeKalb, to compel them to grant to him a license to retail spiritous liquors in said town.

Relator averred that he had been engaged in retailing liquors in said town for more than twenty-five years, and that it was his only or principal means of supporting himself and family; that he had applied to said commissioners for a license; had tendered a bond duly executed with good security, and proposed to take the oath required by law, and tendered the sum of fifty dollars in specie as the price of said license. That said Commissioners refused to grant him a license. Relator prayed that a writ of mandamus do issue, requiring and commanding said Commissioners to grant a license to said William M. Hill, to retail spiritous liquors in the town of Decatur, for the term of one year, upon his paying a license fee of fifty dollars, and complying with the law and statutes in such case made and provided.

The Judge upon hearing the petition, ordered said Commissioners to appear and show cause why a peremptory mandamus should not issue compelling them to grant the license prayed for by relator.

The Commissioners answered and showed for cause, that they had refused to grant the relator the license to retail spiritous liquors by virtue of and in accordance with an ordinance passed by said Commissioners on the 15th day of January, 1857, and a part of which ordinance is in the following words, to-wit:

"Sec. 10. No spirituous or intoxicating liquors shall be sold within the corporate limits of the town of Decatur, in less quantity than three gallons, from and after twelve o'clock of Friday, the 16th day of January instant.

"Sec. 11. From and after the 16th day of March, next, no person shall be allowed to sell any spirituous or intoxicating liquors within the corporate limits of the town of Decatur, except practicing physicians for medical purposes."

The respondents admit that relator made a tender of $50 as a license fee, and offered to give a bond and security, and to comply with the laws relating to retailers, and demanded a license, which they refused; and they claim and assert the right to refuse said license, under and by virtue of the power and authority vested in them by the 12th section of the Act passed at the last session of the General Assembly (1855-6,) entitled an act to alter, change and amend an act, to incorporate the town of Decatur, passed in 1823.

Judge Bull, upon hearing the answer and argument, re-fused to order a mandamus, and discharged the rule nisi:

Whereupon counsel for relator excepted and assigns error, &c.

T. W. J. Hill, for relator.

Wilson, and Ezzard & Collier, for respondents.

By the Court.—Benning, J. delivering the opinion.

The question is, ought the mandamus to have been granted? The Court below refused to grant it.

The Commissioners of the town of Decatur, in resistance to the application for a mandamus, set up the act of the 3d of March, 1856, to amend an act to incorporate the town of Decatur, and the ordinance passed by them in accordance with, what they supposed to be, the import of the twelfth section of that act.

In reply to this defense, the applicant for the mandamus took two positions.

1st. That the whole body of the said act of March the 3d, 1856, was "matter different from what" was "expressed in the title" of the act, and therefore, that the whole act was unconstitutional.

2d. That even if the act was not constitutional, yet, that it did not authorize the Commissioners of the town of Decatur to prohibit the sale of spirituous liquors in that town.

These positions will be considered in their order.

The title of the raid act of March 3d, 1856, is as follows: "An Act to alter, change and amend an act, entitled an act, to incorporate the town of Decatur, in the county of DeKalb, assented to December 10th, 1823."

There is no act so entitled.

But there is an act entitled, "An Act to make permanent the site of [the] public buildings in the county of DeKalb, at the town of Decatur; and to incorporate the same." And this act was assented to, December the 10th, 1823; and there is no other act at all, relating to the incorporation of the town of Decatur.

Now, the Legislature must have intended the Act of March the 3d, 1856, to be amendatory of some act that was an act to incorporate the town of Decatur. But there is no act that was an act to incorporate the town of Decatur, except the act aforesaid. Therefore, the Legislature must have intended the act of March the 3d, 1856, to be amendatory of the act aforesaid.

But if they did so intend, then it is manifest, that there isnothing in the body of the Act of March 3d, 1856, that is different from what in expressed in the title of the act.

We think that there is nothing in the body of the act that is different from what is expressed in the title of the act; and, therefore, we think that the act is not unconstitutional.

Does the Act give authority to the Commissioners of the town of Decatur, to prohibit the selling of spirituous liquor within that town? If any part of the act does, it must be the twelfth section. The twelfth section is in these...