Moore v. State

• Decision Date: 09 August 1906
• Citation: 55 S.E. 327,126 Ga. 414
• Parties: MOORE v. STATE.
• Court: Georgia Supreme Court

55 S.E. 327

126 Ga. 414

MOORE v. STATE.

Supreme Court of Georgia

August 9, 1906

Syllabus by the Court.

Judicial cognizance is to be taken by the courts that the territory now embraced in the county of Crisp was, before the creation of that county, within the boundaries of Dooly county wherein the sale of intoxicating liquors was prohibited by law. Under the express provisions of the act of 1905 (Acts 1905, p. 46) authorizing the organization of new counties the local prohibition law prevailing in Dooly county immediately became of full force and effect in the county of Crisp, and has since its creation undergone no change.

(a) The constitutionality of a statute cannot be for the first time questioned in the Supreme Court.

(b) A person illegally selling intoxicating liquor in a county where the selling thereof is altogether prohibited cannot properly be indicted for the statutory offense of selling liquor without a license.

Under the agreed statement of facts upon which this case was tried the accused could not lawfully be convicted of a violation of Pen. Code 1895, § 428, which, as amended by the act of December 9, 1897 (Acts 1897, p. 39), declares that, "if any person shall sell, contract to sell, take orders for, or solicit, personally or by agent, the sale of spirituous malt, or intoxicating liquors, in any county *** where the sale of such liquors is prohibited by law, high license or otherwise, he shall be guilty of a misdemeanor."

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

E. H. Moore was convicted of an illegal sale of liquor, and brings error. Reversed.

J. T. Hill and Jas. Taylor, for plaintiff in error.

F. A. Hooper, Sol. Gen., for the State.

EVANS, J. (after stating the facts).

1. It is a matter of which judicial cognizance may be taken that the territory now embraced within the boundaries of Crisp county was, upon the creation of that county, laid off from the county of Dooly, wherein the sale of liquor was prohibited by law. The act under which the county of Crisp was organized expressly provided that "all local laws and general laws having local application [then] in force within any territory included within the limits of any new county [should] be in full force and effect within such territory included within the limits of such new county; provided that where by the general laws of this state provision is made for any of said laws going into effect in any county by an election to be held, that an election may be held in said new county at any time after its creation for the purpose of putting said local laws into effect, notwithstanding the provision of any general law requiring the lapse of any specified time after the last election on the subject." Acts 1905, p. 50, § 15. In the brief of counsel for the plaintiff in error the contention is made that "the Legislature had no authority to so transfer a local prohibition law or a local option law," and that the above-quoted provisions of the act of 1905 contravene article 1, § 4, par. 1, of the Constitution, declaring that laws of a general nature shall have uniform operation, etc. But, as the constitutionality of that act does not appear to have been assailed in the court below, we cannot undertake to pass upon the constitutional question thus sought to be raised for the first time in this court. State v. Henderson, 120 Ga. 781, 48 S.E. 334 (7). Treating the act of 1905 as valid and operative, in so far as it undertook to provide that local laws should remain in force over the territory taken from one county for the purpose of creating a new county, it is evident that there could be no legal sale of liquor in Crisp county, after the territory embraced therein was taken from Dooly county, until there was a change effected in the prohibitory liquor law, which was inherited from that county by the county of Crisp. The accused concedes that no change has been effected by any election held under the provisions of the general local option liquor law since the formation of Crisp county. It follows that there is no merit in his contention, presented by demurrer and also by special plea, that the indictment did not charge any penal offense, for the reason that it was not unlawful to sell or solicit orders for liquor in Crisp county. The first count in the indictment was good. The second count was, however, open to the objection urged against it by special demurrer, viz., that, the county of Crisp "being dry" and there being no one authorized by law to grant a license for the sale of liquor therein, the statutory offense of...