Risser v. City of Thomasville

• Decision Date: 03 February 1982
• Docket Number: No. 38068,38068
• Citation: 248 Ga. 866,286 S.E.2d 727
• Parties: RISSER v. CITY OF THOMASVILLE, et al.
• Court: Georgia Supreme Court

Page 727

286 S.E.2d 727

248 Ga. 866

RISSER v. CITY OF THOMASVILLE, et al.

No. 38068.

Supreme Court of Georgia.

Decided Feb. 3, 1982.

Elliott P. McCollum, Jr., McCollum & Rawlins, Thomasville, for P. N. Risser, Jr.

B. B. Earle, Jr., William C. Sanders, Thomasville, for City of Thomasville, Georgia et al.

GREGORY, Justice.

Appellant sought a 1981 beer and wine license from the City of Thomasville Board of Commissioners. After denial of his application, he brought a petition for mandamus against the city and its commissioners. This was denied by the trial court, and he appeals.

It was stipulated and undisputed that the property for which appellant sought this license is located within 100 yards of the First Presbyterian Church, which operates the First Presbyterian Kindergarten on its property.

Code Ann. § 58-724.1 (repealed July 1, 1981, but the effective statute governing this case) states: "It shall be illegal for any person to sell either beer or wine at a place within 100 yards of any school or schoolhouse in this State." Section 5-6 of the Code of the City of Thomasville states: "No beer shall be sold at retail in the city or shall be kept for sale or offered for sale, or be given away, at any business location within one hundred (100) yards of any school or schoolhouse...." Appellant contends that the trial court erred when it ruled that the church kindergarten was a "school" within the meaning of the Georgia statute and the City's ordinance. We affirm.

In order to properly interpret the language of the two enactments at issue, we turn to Code Ann. § 102-102, our rules governing the construction of statutory enactments.

Code Ann. § 102-102(1) provides: "The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter." In the absence of words of limitation, words in a statute should be given "their ordinary and everyday meaning." Richmond County Board of Tax Assessors v. Georgia Railroad Bank & Trust Company, 242 Ga. 23, 25, 247 S.E.2d 761 (1978). This rule applies to the construction of both municipal ordinances and statutes. Snow v. Johnson, 197 Ga. 146, 155, 28 S.E.2d 270 (1943).

In applying this rule, the facts show the First Presbyterian Kindergarten is a "school" within the ordinary and everyday meaning of that word. Webster's Third New International Dictionary defines a school as "An organized source of education or training: as (1) an institution for the teaching of children." It defines a kindergarten as "A school or division of a school below the first grade usually serving pupils of the 4-6 age group and fostering their natural growth and social development through constructive play with blocks, clay, crayons, and by group games, songs and exercise."

The institution at issue here has been in existence for over thirty years, has five teachers, and has approximately eighty students, ages three, four and five years old. Of the five teachers, three are college graduates who either currently have, or have had a teacher's certificate in Georgia and have taught in the Georgia public schools. Each teacher has a full-time aide. The kindergarten runs for a nine-month session, and school hours are 8:15 a. m.--12:00 noon, five days per week. The kindergarten teaches phonics, reading readiness, reading, adding and subtracting as well as music, swimming and gymnastics. It is financed by a monthly student tuition charge. Its finances are entirely separate from the church budget. The record shows that the focus of this kindergarten is educational. It operates to actively prepare the children for the first grade rather than acting merely as an organization for the supervision, care, and entertainment of the children.

Appellant argues that the courts have not traditionally included kindergartens in their definitions of the word "school," citing several cases involving the construction of other states' compulsory education statutes and also citing Rivkind v. State ex rel. Gibson, 159 Fla. 553, 32 So.2d 330 (1947). The cases dealing with compulsory education statutes are not applicable here. The cases and statutes cited, including Georgia's compulsory education statute, do not use the word "school" in its ordinary everyday sense. They subject the word "school" to obvious words of limitation, so that the statute only applies to the public and private schools attended by children in a particular age bracket, such as ages seven to sixteen in Georgia. This limited use of the word "school" does not control the definition of "school" when used in other statutory contexts, without the limiting language. Rivkind appears to be the only case which addresses the question whether a kindergarten is a "school" within the meaning of an ordinance and a state statute prohibiting the sale of alcoholic beverages within a prescribed distance of a school. In Rivkind, the Florida court held, without discussion, that a ...