Osburn v. Mayor

• Citation: 118 Ga. 53,44 S.E. 807
• Parties: OSBURN. v. MAYOR, etc., OF CITY OF MARIETTA.
• Decision Date: 30 May 1903
• Court: Georgia Supreme Court

44 S.E. 807

118 Ga. 53

OSBURN.

v.MAYOR, etc., OF CITY OF MARIETTA.

Supreme Court of Georgia.

May 30, 1903.

INTOXICATING LIQUORS—ILLEGAL SALE.

1. A municipal ordinance prohibiting the having or keeping for illegal sale of any intoxicating, spirituous, vinous, or malt liquors, the having of any place where any of said liquors are stored or kept for illegal sale, or to be distributed, or to be frequented and drunk, and the distributing of any of said liquors or the doing of any other act that tends to increase or produce drunkenness, is not unconstitutional as in conflict with the general domestic wine act of 1877.

2. Papworth v. State, 31 S. E. 402, 103 Ga. 36, distinguished.

(Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Bruce Osburn was convicted of selling liquor without a license, and brings error. Affirmed.

J. Z. Foster, for plaintiff in error.

J. E. Mozley and D. W. Blair, for defendant in error.

CANDLER, J. The accused was tried and convicted in the mayor's court of the city of Marietta, under an ordinance a copy of which is as follows: "No person shall have or keep any intoxicating spirituous, vinous or malt liquors in said city for the purpose of illegal sale. Nor shall any person have any place in said city where any of said liquors are stored or kept for illegal sale, or to be distributed or to be frequented and drunk. Nor shall any person distribute any of said liquors in said city, or do any other act that tends to increase or produce drunkenness. Any person violating any of the provisions of this section shall on conviction be fined not more than fifty dollars." On the trial it was shown that the accused bad on several occasions sold whisky at a livery stable in the city of Marietta. His sales were always made at the same place, and the whisky was sold in any quantity desired by the purchaser. In his statement the accused practically admitted having sold whisky to the witness introduced to prove the sales. The case was carried by certiorari to the superior court of Cobb county, and the certiorari was overruled, whereupon the accused excepted.

The main contention in the court below, and in this court, is that the ordinance under which the accused was convicted is invalid as in conflict with the general domestic wine act of 1877. In addition, one or two minor questions were raised as to the form of the affidavit upon which the accusation was based, but it is sufficient to say that in our opinion these...