Paulk v. Mayor, etc., of Town of Sycamore

• Decision Date: 18 July 1898
• Citation: 31 S.E. 200,104 Ga. 728
• Parties: PAULK v. MAYOR, ETC., OF TOWN OF SYCAMORE.
• Court: Georgia Supreme Court

31 S.E. 200

104 Ga. 728

PAULK v. MAYOR, ETC., OF TOWN OF SYCAMORE.

Supreme Court of Georgia

July 18, 1898

Syllabus by the Court.

Possession of intoxicating liquors for the purpose of selling them contrary to law is not a crime punishable under the laws of this state; and therefore it is competent for the authorities of a municipal corporation, when authorized by its charter to adopt an ordinance declaring such possession to be an offense against the city, and to provide that the offender shall be punished for the same. What is known as the "general welfare clause" in municipal charters confers the power to pass such an ordinance. This power may be exercised by municipalities wherein the sale of liquor is lawful under license, as well as those within the limits of which the sale is entirely prohibited. Possession of liquors for the purpose of selling them contrary to license laws is as much within the domain of legislation by municipal corporations as possession for the purpose of sale contrary to prohibition laws.

Error from superior court, Irwin county; C. C. Smith, Judge.

J. E Paulk was convicted of the violation of an ordinance, and his writ of certiorari was overruled, and he brings error. Affirmed.

W. A Hawkin and Thomson & Whipple, for plaintiff in error.

J. H. Martin, W. T. Williams, and Tom Eason, Sol. Gen., for defendants in error.

COBB J.

J. E. Paulk was arraigned in the municipal court of the town of Sycamore, charged with a violation of an ordinance which prohibited the keeping on hand, for sale, of spirituous, malt, or intoxicating liquors. The accused admitted the facts involved in the charge, but maintained that the corporate authorities had no power to enact the ordinance. His contention was overruled, and he presented a petition for certiorari, in which he set forth that the ordinance under which he was convicted had been repealed, and that, if not repealed, the same was illegal and void, because of a want of power in the city authorities to pass it. In answer to the writ of certiorari the mayor stated that the ordinance had not been repealed, but had been amended, and was still of force, and, further, that no point was made before him at the trial in relation to the ordinance, other than that the same was void for want of power in the city authorities to enact it. The certiorari was overruled, and the accused excepted.

The ordinance under which the accused was convicted was as follows: "It shall be unlawful for any person to keep or have in his possession within the limits of Sycamore any brandy, whisky, lager beer, or any intoxicating viands of any sort, for the purpose of selling, bartering, or dealing in same within the corporate limits of the city of Sycamore." There has been much legislation in reference to the sale of liquors within the limits of this town. We will briefly refer to the several acts relating to the subject. By an act approved February 24, 1877, it was declared to be unlawful for any person within the 432d district, G. M., of Irwin county, which embraced the territory afterwards incorporated as the town of Sycamore, to sell any intoxicating or ardent spirits within the limits of such district without the consent or approval of two-thirds of all the legal voters therein. A violation of this act was declared to be a misdemeanor, and punishable as such. Acts 1877, p. 337. By an act approved February 27, 1877, it was provided that it was lawful for the manufacturers of domestic wines in this state to sell the same by wholesale, or in quantities not less than one quart, and it was declared therein that nothing in the license laws of this state should be held to apply to such sales. Acts 1877, p. 33. By an act approved September 26, 1879, the sale of all spirituous or intoxicating liquors was prohibited within the limits of Irwin county, and the sale of such liquors declared to be a misdemeanor, and punishable as such. Acts 1878-79, p. 388. The town of Sycamore, in the county of Irwin, was incorporated by an act approved September 29, 1891 (Acts 1890-91, vol. 2, p. 817). This act provides that sections 774-797, inclusive, of the Code of 1882 (Pol. Code, §§ 684-710), so far as not in conflict with anything in the act incorporating the town, are embodied in, and made a part of its charter. One of the sections thus made a part of the town charter declared that the municipal authorities should have "power to license and regulate the management of bar-rooms, saloons," etc. Pol. Code, § 702. It was further provided in the act of 1891, chartering the town, that "no intoxicating, spirituous, or malt liquors shall ever be sold in said town." It will be seen at a glance that the question as to whether the sale of intoxicating liquors is lawful or unlawful in the town of Sycamore is one involving no little difficulty, when we look alone at the statutes dealing with the subject. When we consider the decisions of this court relating to some of the acts embraced in the above enumeration, the difficulty in determining this question is decidedly increased. The act of 1879, which prohibited the sale of all spirituous or intoxicating liquors in Irwin county, has been held to be unconstitutional because broad enough in its terms to prohibit the sale of domestic wines. So construed, it became a special law relating to a subject for which provision was made by an existing general law; that is, the act of 1877, protecting the sale of such wines. See Papworth v. State, 31 S.E. 402. According to the principle ruled in the case of Bagley v. State (Ga.) 29 S.E. 123, that provision in the charter of the town of Sycamore prohibiting the sale of liquors is unconstitutional, because it is a special law dealing with a subject which has already been provided for by the general local option liquor law. Pol. Code, § 1541 et seq. That portion of the charter of the town of Sycamore being eliminated by the effect of this decision, it would seem that the power of the municipal authorities to deal with the subject of the sale of liquors was to be determined by...