Menken v. City of Atlanta

• Decision Date: 09 March 1887
• Parties: MENKEN v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

2 S.E. 559

78 Ga. 668

MENKEN v. CITY OF ATLANTA.

Supreme Court of Georgia

March 9, 1887

Certiorari from Fulton county.

W. D Ellis and Hoke Smith, for plaintiff in error.

J. B Goodwin and J. T. Pendleton, contra.

BLECKLEY, C.J.

The statute of this state known as the "Local Option Law" was passed September 18, 1885. Sess. Laws 1884-85 p. 121. It took effect in Fulton county, the county in which the city of Atlanta is located, as the result of a popular election held for that county as the act prescribes. The act declares, under certain penalties, that "it shall not be lawful for any person within the limits of such county to sell or barter for valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or furnish at other public places, any alcoholic spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which if drank to excess will produce intoxication." The manufacture, sale, and use of domestic wines or cider, the sale of wines for sacramental purposes, and the sale or furnishing by licensed druggists of pure alcohol for medical, art, scientific, and mechanical purposes, are excepted from the operation of the statute, save that wines or cider shall not be sold by retail in bar-rooms.

This act being in force, the city of Atlanta, on the twenty-first of June, 1886, by the mayor and general council, passed an ordinance declaring "that on and after the first day of July, 1886, any person, firm, or corporation who shall keep for unlawful sale, in any store, house, room, office, cellar, stand, booth, stall, or other place, any spirituous, fermented, or malt liquors, shall on conviction be punished by fine not exceeding five hundred dollars, or imprisonment not exceeding thirty days, either or both in the discretion of the court." Menken, the plaintiff in error, was tried, convicted, and fined for a violation of this ordinance, in September, 1886, upon a charge of keeping for unlawful sale spirituous and malt liquors. He petitioned the judge of the superior court, in due form, for a writ of certiorari, which was denied, and this denial is the error assigned.

At his trial in the municipal court, Menken made affidavit of certain alleged facts, which affidavit the prosecution conceded to be true. The material contents of the affidavit were substantially as follows: When arrested, Menken was acting as agent of the Atlanta City Brewing Company, a corporation organized under a charter from the legislature authorizing it to manufacture and sell malt liquors. As such agent, he was in possession of bottled beer which he was delivering at the residences of citizens of Atlanta, for private use of such citizens, in quantities of a quart and more. The beer was the property of the corporation, and he was acting simply as its hired agent. The charter of the corporation was granted long before the passage of the local option law. Under this charter, several years ago, and while it was lawful to manufacture and sell malt liquors in the city of Atlanta, and elsewhere in Georgia, the corporation invested in its beer manufactory $125,000, to-wit: Real estate, $3,100; buildings, $18,000; bottling-house and machinery, $7,000; vaults, $50,000; vats and tanks, $15,000; springs, $2,000; general machinery, $20,000; kegs and half barrels, $9,900. This large investment is so specialized and localized that it is available alone at the place where the brewery is situated, and for the one special business. Except for the brewing business, the whole property, though costing $125,000, is not worth more than $16,000. A brewing business in Atlanta cannot be conducted so as to compete with establishments of the west without a market for fresh beer in and near the city, and the course of dealing is such that sales, even on orders for shipment by railway, have to be consummated within the city if made at all. To prohibit delivery of beer in the city will necessarily stop the business of the corporation, and take from it and its stockholders their property to the value of over $100,000. In addition to what Menken stated in his affidavit, it appeared that he was arrested while in the act of delivering some bottles of beer at the house of one Bliley, in the city of Atlanta, and that he had already sold the same to Bliley. Bliley himself testified that he purchased a number of bottles of beer from the Atlanta City Brewery, which he ordered delivered at his house, and that afterwards delivery was made accordingly.

1. Though the accused was not the owner of the malt liquors in which he dealt, we may for the present treat him as owner, and consider the question of agency afterwards. It does not appear from his affidavit whether his occupation was only to deliver on past orders, or whether it was partly that, and partly to obtain orders, and deliver at the time of receiving them. Of course, his affidavit is to be construed most strongly against him as to anything which ought to have been denied, or which naturally would have been denied if not true. The testimony outside of his affidavit shows with reasonable certainty that in one instance he took the order, and made the delivery afterwards. But treat the case in either aspect. If he had possession of these liquors to deliver them in the city on future orders, it would be possession for unlawful sale; and, if to deliver on past orders, it would be possession for the consummation of unlawful sale. The title to beer ordered in a city for family use would not pass until actual delivery to the customer, unless delivery were dispensed with by express contract. Certainly, it would not pass where the seller undertook to make delivery at the residence of the buyer. Destruction of the article while on the way would be the loss of the seller, and any conversion of it, or injury done to it by another, would give the seller a right of action, but none to the buyer. So long as the owner retains possession for the purpose of consummating a sale, past or future, he should be regarded as keeping the article for sale. The property is his, the possession his, and they remain his until delivery is made in pursuance of the contract of sale. Accordingly, we hold that so long as the owner of liquors retains possession of them, intending to deliver them on an unlawful contract of sale, such possession is within a municipal ordinance which prohibits the keeping of such liquors for unlawful sale.

2. That the accused was not the owner, but only the hired agent of the owner, is no excuse for him. The agent's possession is that of the owner; and, if the agent participate in the unlawful purpose, he is equally guilty with his principal. In dealing with crime, the law gives no heed to a plea of agency. In criminal transactions all voluntary agents are accomplices.

The position of the counsel, that the city cannot, with or without an ordinance for the purpose, punish as an offense against the municipality anything which by statute is an offense against the state, is quite sound. But the statute, though it makes the unlawful sale of liquors an offense, does not make the keeping of them for unlawful sale an offense. The ordinance does the latter, but not the former. It hovers on the margin of the statute, and nowhere overlaps the text. If there is keeping for unlawful sale, the ordinance is violated, whether any sale is made or not. In case a sale ensues, the statute is also violated; but this does not cancel the violation of the ordinance. An offense committed against one jurisdiction cannot be wiped out by committing another against another jurisdiction. The only object of the ordinance is to prevent preparation for violating the statute. It would be singular if those who prepare, but go no further, could be punished under the ordinance, while those who prepare and then go on to violate, could not. So to rule would be like holding that to carry a pistol concealed is an offense only when there is nobody shot. That an offender will be liable to prosecution under the statute for unlawful selling when a sale is consummated, will not hinder his being punished under the ordinance for keeping for unlawful sale. Mayson v. City of Atlanta, (October term, 1886.)

4. If it has not been heretofore sufficiently decided, we decide now that the local option legislation of this state is constutional as a valid exercise of the police power. Historically considered, there is no subject more completely amenable to this power than the sale of intoxicating liquors. Georgia is upon record as being familiar with the exercise of the power, both before and since the revolution. Her governing authorities long ago branded distilled spirits as "dangerous" to the public, and even malt liquors have, from the dawn of her history, been subjected to...