Mayor v. Dispensary Com'rs Of Lee County

• Court: Georgia Supreme Court
• Writing for the Court: BECK
• Citation: Mayor v. Dispensary Com'rs Of Lee County, 54 S.E. 539, 125 Ga. 559 (Ga. 1906)
• Decision Date: 18 May 1906
• Parties: MAYOR, ETC., OF SMITHVILLE. v. DISPENSARY COM'RS OF LEE COUNTY.

54 S.E. 539

125 Ga. 559

MAYOR, ETC., OF SMITHVILLE.

v.DISPENSARY COM'RS OF LEE COUNTY.

Supreme Court of Georgia.

May 18, 1906.

1. Municipal Corporations — "Towns" — Cities.

The word "town" is often used as a generic term, embracing cities as well as villages, and when the expression "incorporated town" is used in an act of the Legislature it may include "cities, " unless the contrary appears from the whole statute to have been the intent of the legislative body.

2. Intoxicating Liquors—Dispensary Act-Incorporated Towns.

"Incorporated towns, " within the meaning of the dispensary act for Lee county (Acts 1902, p. 222), includes a city located in that county, and, moreover, embraces every incorporated town or city within the county.

3. Appeal—Review—Objections Waived.

Assignments of error, not urged or referred to in the brief of counsel for plaintiff in error, will be treated as abandoned.

(Syllabus by the Court.)

Error from Superior Court, Lee County; Z. A. Littlejohn, Judge.

Action by the mayor and council of Smithville against the dispensary commissioners of Lee county. Judgment for defendant, and plaintiffs bring error. Affirmed.

G. W. Warwick and Walters & Walters, for plaintiffs in error.

Jas. Taylor and E. A. Hawkins, for defendant in error.

BECK, J. The mayor and council of the city of Smithville brought their equitable petition against the dispensary commissioners of Lee county in an effort to enjoin the defendant from operating a dispensary In the city of Smithville on the ground that the act of the General Assembly (Acts 1902, p. 222), which provided for the establishment of dispensaries in the towns of Lee county, by its terms restricted the establishment of such dispensaries to towns, and forbade the establishment of a dispensary in Smithville, which was, at the time of the passage of the act mentioned, a legally incorporated city. The petitioners further contended for the grant of the injunction on the ground that under the act providing for the establishment of the dispensaries the different municipalities have the right to have them discontinued at will. The judge refused to grant the relief sought, and the petitioners excepted.

It is contended in the argument of counsel for plaintiff in error that "the Judge committed error in not granting the injunction and the relief prayed for, because the dispensary act creating the dispensary commissioners of Lee county (Acts 1902, p. 222) only provided for the establishment of dispensaries in Lee county in the towns thereof, and not in the cities. Smithville, at the time of the passage of the dispensary act, was not a town, but a city. See Acts 1901, p. 633." While there are other assignments of error in the bill of exceptions, counsel for plaintiff in error, in their brief filed with this court, urge only the one based upon the fact that the act creating the dispensaries in Lee county provides for their establishment in "towns, " and not in "cities, ') insisting that the "mayor and council of Smithville had no authority, under the law, to pass a resolution authorizing the dispensary commissioners of Lee county to establish a dispensary in Smithville. Its establishment being illegal, the mayor and council had a right to take steps to have it discontinued." And we construe this language of counsel to mean that the resolution of the mayor and council authorizing the dispensary commissioners to establish a dispensary in Smithville was illegal because the act providing for the establishment of the dispensaries was intended by the legislature to apply only to "incorporated towns, " and not to municipalities which by legislative act had been raised to the dignity of "cities." With this contention of counsel we are not, however, prepared to agree. The word "town, " in the language both of courts and statutes, Is very frequently used in a generic sense, including villages, towns, and cities. "It may be said that the term 'town' now includes almost every character of municipal government, from a city to a village, including places which are governed by a commission with some municipal governmental powers, and designated by such title; and, if the functions of these different municipalities are similar, this term 'town' would seem to include them all." Herrman v. Guttenberg (N. J. Sup.) 43 Atl. 703. "The word 'town' is often used as a generic term, embracing all such primary municipal corporations as incorporated cities and villages; and,...