Price v. City of Snellville

• Decision Date: 09 July 1984
• Docket Number: No. 40628,40628
• Citation: 253 Ga. 166,317 S.E.2d 834
• Parties: PRICE v. CITY OF SNELLVILLE.
• Court: Georgia Supreme Court

Page 834

317 S.E.2d 834

253 Ga. 166

PRICE v. CITY OF SNELLVILLE.

No. 40628.

Supreme Court of Georgia.

July 9, 1984.

Marc T. Treadwell, Susan A. Cahoon, Kilpatrick & Cody, Atlanta, for Margaret Mays Price.

Max Olim, Gershon, Olim, Katz & Loeb, Atlanta, for City of Snellville et al.

BELL, Justice.

Prior to 1982, sales of distilled spirits by the drink for consumption on premises were illegal in Gwinnett County. In a November 2, 1982 special referendum election conducted pursuant to OCGA § 3-4-92, [Code Ann. § 5A-2903], Gwinnett County voters were asked the following question: "SHALL THE GOVERNING AUTHORITY OF GWINNETT COUNTY BE AUTHORIZED TO ISSUE LICENSES TO SELL DISTILLED SPIRITS FOR BEVERAGE PURPOSES BY THE DRINK, SUCH SALES TO BE FOR CONSUMPTION ON THE PREMISES?" A majority voted affirmatively. The appellee City of Snellville ("the City"), which is located within Gwinnett County, has never held an independent City-wide referendum on this issue. In 1983 appellant Margaret Mays Price, who owns and operates a Snellville restaurant, filed an action against the City and various City officials. Price prayed for a mandamus absolute to require the City to adopt ordinances necessary for issuance of licenses to sell distilled spirits by the drink for consumption on the premises within Snellville, and to require the City to issue her a license for sale of distilled spirits by the drink for consumption within her restaurant. Both sides moved for summary judgment. The trial court granted summary judgment in favor of the City and denied Price's motion, holding that the City was without power to adopt ordinances and issue rules and regulations governing the sale of distilled spirits by the drink for on premises consumption, and did not have authority to issue licenses for such sales, because the City voters had not legalized said sales in a municipal referendum pursuant to OCGA § 3-4-92 [Code Ann. § 5A-2903]. Price appeals, and we affirm.

The express language of the ballot presented the voters of Gwinnett County with the question of whether "the governing authority of Gwinnett County" should be vested with the power to issue the type of license in question. It is obvious that the governing authority of Gwinnett County is the Board of Commissioners, and there can be no doubt that the November 2, 1982 election did not expressly vest the City with such authority. However, it is Price's contention that notwithstanding the fact that the wording of the referendum ballot was so limited, the General Assembly intended the affirmative vote thereon to also empower Gwinnett County incorporated municipalities to adopt licensing ordinances and issue licenses. We disagree with this contention.

OCGA § 3-3-2(a) provides that "Except as otherwise provided for in this title, the manufacturing, distributing, and selling by wholesale or retail of alcoholic beverages shall not be conducted in any county or incorporated municipality of this state without a permit or license from the governing authority of the county or municipality." OCGA § 3-4-110 [Code Ann. § 5A-2904] further provides that "The governing authority of every county and municipality authorized to issue licenses as provided in this article shall have the power and authority to adopt all reasonable rules and regulations governing the qualifications and criteria for the issuance of any licenses for the sale of distilled spirits by the drink ... These powers shall be exercised only after the authority to do so has been granted pursuant to the procedures prescribed in Code Section 3-4-91 or 3-4-92." OCGA § 3-4-92 outlines the procedures for both counties and municipalities to follow in holding referenda to legalize the sale of distilled spirits by the drink if package sales are not already lawful, but this statute is silent on the problem of whether a municipality which has not conducted a local referendum pursuant to OCGA § 3-4-92, but is located within a county which has held a referendum, is empowered by the result of that referendum to allow liquor by the drink sales.

OCGA § 3-4-92 has not been previously construed by this court. However, the statute is the product of a process of legislative development of local option referenda statutes, beginning with Ga.L.1937-38, Ex.Sess., p. 103, § 4 and its subsequent amendments (repealed by Ga.L.1980, pp. 1573, 1653-54, § 7(d)), and is also attributable to Stephens v. Moran, 221 Ga. 4, 142 S.E.2d 845 (1965), which is the leading case interpreting Ga.L.1937-38, Ex.Sess., p. 103, § 4. In Stephens the City of East Point refused to adopt regulations concerning the manufacture and sale of alcoholic beverages and liquors, although the voters of Fulton county had passed a referendum pursuant to Ga.L.1937-38, Ex.Sess., p. 103, § 4 ("the 1938 Act"), permitting the manufacture, sale, and distribution of same in that county. This court held that "[t]he consequences of an election favoring control of alcoholic beverages and liquors cannot be avoided upon the theory that the result binds only the unincorporated areas of a county. The 1938 Act provides that the question of permitting or prohibiting the sale of liquor shall be...