Regency Club v. Stuckey

• Decision Date: 16 November 1984
• Docket Number: 41139,Nos. 41138,41142,41140,41143,s. 41138
• Court: Georgia Supreme Court
• Parties: REGENCY CLUB, et al. v. STUCKEY, et al. STUCKEY, et al. v. REGENCY CLUB, et al. CITY OF DUBLIN v. STUCKEY, et al. STUCKEY, et al. v. CITY OF DUBLIN. LAURENS COUNTY v. STUCKEY, et al.

Page 166

324 S.E.2d 166

253 Ga. 583

REGENCY CLUB, et al. v. STUCKEY, et al.

STUCKEY, et al. v. REGENCY CLUB, et al.

CITY OF DUBLIN v. STUCKEY, et al.

STUCKEY, et al. v. CITY OF DUBLIN.

LAURENS COUNTY v. STUCKEY, et al.

Nos. 41138, 41143, 41139, 41142, 41140.

Supreme Court of Georgia.

Nov. 16, 1984.

Rehearing Denied Dec. 4, 1984.

Judson Leon Green III, Green & Tribble, Dublin, for Laurens county.

James V. Hilburn, Jones, Jones & Hilburn, Dublin, for City of Dublin.

Will Ed Smith, Smith & Harrington, Eastman, Fred B. Kitchens, Jr., John Marshall & Associates, P.C., Michael J. Bowers, Atty. Gen., David Runnion, Asst. Atty. Gen., Atlanta, for James D. Stuckey et al.

BELL, Justice.

These cases concern the constitutionality of OCGA § 3-7-43. Resident taxpayers of the City of Dublin and Laurens County filed suit to temporarily and permanently enjoin Laurens County, Dublin, and the State Revenue Commissioner from issuing alcoholic beverage licenses to certain private clubs located in the city and county, and to enjoin those clubs from "pouring" alcoholic beverages. The complaint alleged that OCGA § 3-7-43, pursuant to which the city and county were issuing alcoholic beverage licenses to the private clubs, and which permitted them to do so without having previously obtained voter approval, was an unconstitutional special law, and that neither the governing authorities nor the commissioner could license the sale of alcoholic beverages by the defendant private clubs because no election approving such action had been held as required by the general laws of OCGA § 3-7-41 or § 3-7-42.

The complaint was filed on November 15, 1983, and on that same day a rule nisi setting a hearing for December 14, 1983 was issued. After the hearing the trial court held OCGA § 3-7-43 unconstitutional as being a special law contrary to the general laws of the state requiring voter approval before alcoholic beverage licenses to private clubs could be issued. The court also held null licenses which had been issued pursuant to the statute, and temporarily enjoined the city, the county, and the commissioner from issuing any further licenses. The court, however, refused to enjoin the private clubs from selling alcoholic beverages. It further noted that it would address the issue of permanent injunctive relief at a later date. The city, county, and private clubs have appealed certain parts of the trial court's ruling in cases nos. 41138, 41139, and 41140, and in cases nos. 41142 and 41143 the resident taxpayers have appealed that part of the court's order refusing to enjoin the private clubs.

Cases Nos. 41138, 41139, 41140.

1. The appellants assert that the trial court erred in finding OCGA § 3-7-43 unconstitutional.

We disagree. The 1983 Ga. Const., Art. III, Sect. VI, Para. IV(a), provides that "[l]aws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law ...." The issue here is whether OCGA § 3-7-43 is unconstitutional as a special law in conflict with an existing general law.

The general laws of this state provide that local governing authorities and the State Revenue Commissioner can only issue licenses to private clubs authorizing the sale of alcoholic beverages after a local election approving that activity has been held. OCGA § 3-7-20; § 3-7-41; § 3-7-42. On the other hand, OCGA § 3-7-43, permits the governing authority of any county having a population between 36,800 and 36,990 according to the decennial census of 1980, and the governing authority of each municipality within such county, to issue, without approval by the voters, alcoholic beverage licenses to private clubs. Before its 1982 amendment, OCGA § 3-7-43 granted this authority to counties with populations between 32,500 and 32,800 according to the 1970 decennial census.

We recently addressed the issue of the constitutionality of population statutes in Board of Commissioners of Clayton County v. Clayton County School District, 250 Ga. 244, 246, 297 S.E.2d 724 (1982). We held that "[a]lthough the legislature may classify by population for purposes of legislation, classification on the basis of population must have some reasonable relation to the subject matter of the law and population must furnish a legitimate ground for differentiation. [Cit.] A population statute applicable only to one county is suspect as being a special law, particularly where there are other counties with populations less than and greater than the population bracketed county. Although legislation is presumed to be constitutional, upon proof that a population statute is applicable to only one county and that there are other counties with smaller and larger populations, a presumption arises that the population statute is a special law. If the population statute is contrary to a general law, then the burden of proving that the population classification has a reasonable relation to the subject matter of the law and that population furnishes a legitimate ground for differentiation is upon the party who seeks to uphold the validity of the special laws."

According to the 1970 decennial census only Laurens County fell within the population bracket established by OCGA § 3-7-43. ¹ The same holds true under the 1980 decennial census, with twenty-three Georgia counties having a population greater than 36,990, including Catoosa County with a population of 36,991, and with one hundred and thirty-five Georgia counties having a population less than 36,800, including Rockdale County with a population of 36,747. Thus, all other counties besides Laurens fall outside the population bracket of 36,800 and 36,990, and their governing authorities must seek voter approval in order to obtain the authority to issue alcoholic beverage licenses to private clubs.

We find that "[t]here can be no rational relationship ... between the population bracket established [by OCGA § 3-7-43]," Board of Commissioners of Clayton County v. Clayton County School District, supra, 250 Ga. at 247, 297 S.E.2d 724, and the right to vote on whether a local governing authority can issue alcoholic beverage licenses to private clubs. Thus, the trial court correctly held OCGA § 3-7-43 unconstitutional.

2. The appellants argue that the trial court erred in requiring them in the November 15, 1983 rule nisi order to file defensive pleadings at least five days before the December 14, 1983 hearing. They contend that such an order violated their right under OCGA § 9-11-12(a) to 30 days within which to file their responsive pleadings. They, however, did not object to this order in the trial court, and therefore may not raise this objection on appeal. Borenstein v. Blumenfeld, 250 Ga. 606(2)(3), 299 S.E.2d 727 (1983).

3. The appellants also argue that the sole issue which they had notice would be decided at the December 14, 1983 hearing was whether a temporary injunction should issue against them, and that the trial court therefore erred in deciding the constitutionality of OCGA § 3-7-43 following that hearing.

We disagree. OCGA § 9-11-65(a)(2) provides that "after the commencement" of an interlocutory injunction hearing the trial court may consolidate the decision on the merits of the action with the hearing on the application for an interlocutory injunction. See Wilkerson v. Chattahoochee Parks, Inc., 244 Ga. 472(2), 260 S.E.2d 867 (1979); Kirk v. Hasty, 239 Ga. 362(6), 236 S.E.2d 667 (1977). "However, this power must be tempered by the due process...