Rose v. State
| Decision Date | 11 April 1907 |
| Docket Number | 248. |
| Citation | 58 S.E. 20,1 Ga.App. 596 |
| Parties | ROSE v. STATE. No. 247. ROSE CO. v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Section 428 of the Penal Code of 1895, as amended by the act of 1897 (Acts 1897, p. 39), is by its terms made applicable only in those counties, cities, or other localities where the sale of spirituous, malt, or intoxicating liquors "is prohibited by law, high license, or otherwise."
The sale of liquor is not "prohibited by law, high license or otherwise," in Bartow county. Therefore, an indictment in that county for an alleged violation of the said section as amended was invalid, and a conviction thereon was contrary to law, and must be set aside.
Error from Superior Court, Bartow County; Fite, Judge.
Randolph Rose and the R. M. Rose Company were convicted of an illegal sale of liquors, and bring error. Reversed.
Rosser & Brandon, Ben. J. Conyers, and Neel & Peeples, for plaintiffs in error.
Sam. P Maddox, Sol. Gen., for the State.
In the superior court of Bartow county an indictment was returned against Randolph Rose, W. F. Baker, and R. M. Rose Company. The indictment contained two counts. The first charged a violation of section 431 of the Penal Code of 1895. The second charged a violation of section 428 of the Penal Code of 1895, as amended by the act of 1897 (Acts 1897, p. 39). The defendants Randolph Rose and R. M. Rose Company interposed a demurrer to the second count, on the ground that it "does not allege a crime under the laws of this state, there being no law of force prohibiting, by high license or otherwise, the sale of liquors in Bartow county." The court overruled the demurrer, and the defendants excepted to that judgment. The court instructed the jury that there was no evidence that any spirituous malt, or intoxicating liquors had been sold in Bartow county, and directed a verdict for the defendants on the first count in the indictment. The defendants were convicted on the second count of the indictment, and their motion for a new trial was overruled.
The controlling question in this case is made by the demurrer to the second count of the indictment. This count, as before stated, charged the defendants with a violation of section 428 of the Penal Code of 1895, as amended by the act of 1897. The offense is set forth in the language of the statute; it being alleged that W. F. Baker, Randolph Rose, and R. M. Rose Company, in Bartow county on the 1st day of January, 1907, did "sell, contract to sell, take orders for, and solicit, personally and by agent, the sale of spirituous, malt, and intoxicating liquors in said county of Bartow, where the sale of such liquors is prohibited by law, high license, or otherwise, said R. M. Rose Company being then and there a corporation doing business in this state, and said offense then and there having been committed within the corporate limits of the city of Cartersville, in the said county of Bartow." Was the sale of spirituous, malt, or intoxicating liquors prohibited by law, high license, or otherwise, in Bartow county at the time when the offense charged was alleged to have been committed? If such sale was not prohibited in that county, it follows that the conviction, whatever may have been the facts in the case, was unlawful, and must be set aside. By its express terms, section 428 of the Penal Code of 1895, before and since the amendatory act of 1897, makes it an offense, personally or by agent, to sell, contract to sell, take orders for, and solicit the sale of spirituous, malt, or intoxicating liquors, only in those counties in this state where the sale of such liquors is prohibited by law. Justice Cobb, in the case of Barker v. State, 117 Ga. 433, 43 S.E. 746, gives the legislative intent in the enactment of section 428 as follows: "The manifest purpose of this law is to prevent the sale of intoxicating liquors in a prohibition county, town, or district." See, in the same connection, Loeb v. State, 115 Ga. 241, 41 S.E. 575 (2). The Supreme Court in Strauss v. Mayor of Waycross, 97 Ga. 476, 25 S.E. 329, says: "Prior to the passage of the act of December 18, 1893 [now section 428 of the Penal Code of 1895], soliciting orders for the sale of spirituous, malt, or other intoxicating liquors, in any 'prohibition' county in this state was not indictable under any criminal statute of Georgia, but was for the first time made a state offense by the passage of that act." Section 428 of the Penal Code of 1895 was amended by the act of 1897, by inserting after the word "sell," in the second line, the words "contract to sell, take orders for." It is clear that the Legislature of 1897 thought that this section applied only to those counties wherein the sale of liquor was then prohibited by law; for the caption of the amendatory act expressly restricted its application to "where the sale [of such liquors] is now prohibited by law." In the case of Williams v. State, 107 Ga. 694, 33 S.E. 642, the Supreme Court holds that "the purpose of the act [section 428 of the Penal Code of 1895, as amended by the act of December 9, 1897] is to prevent whisky dealers from selling or contracting to sell, taking orders for, or soliciting, personally or by agent, the sale of intoxicating liquors in a 'dry' county, town, or district." The use of the word "dry" was intended to designate those counties where the sale of liquors is prohibited by law. It is unnecessary to multiply authorities on this point, for it cannot be doubted that the plain, manifest purpose of section 428, as amended, was to protect from the liquor traffic those counties wherein the sale of liquors was prohibited by law, and that this section is applicable only in those counties where the sale is prohibited. It therefore follows that, if there was no valid law which prohibited the sale of spirituous, malt, and intoxicating liquors in the county of Bartow at the time when the alleged offense was committed, there could have been no violation of section 428, as amended by the act of 1897, in that county; and an indictment based on that statute was invalid.
So the question recurs, was the sale of spirituous, malt, and intoxicating liquors prohibited by law, high license, or otherwise, in Bartow county on January 1, 1907, or at any time prior to that date, within the statute of limitations? Let us review the legislation on the subject of the liquor question, as applicable to Bartow county. On February 26 1875 (Acts 1875, p. 338), a local act was passed, permitting an election in Bartow county to determine the question "whether or not spirituous, vinous, or malt liquors shall be sold, bartered, or in any way disposed of for a valuable consideration, in quantities less than one gallon." No election was ever held under this act, and it never became operative. On February 21, 1876 (Acts 1876, p. 328), this act of 1875 was amended, but there was no election under the act as amended, and it never became effective. On December 2, 1884, a local act was passed entitled "An act to submit to the qualified voters of Bartow county the question of the sale and furnishing of intoxicating, alcoholic, spirituous, vinous, or malt liquors in said county, and to prohibit the same from being sold or furnished after said election, if a majority of those voting shall so determine, and to provide penalties for such sale and furnishing, and for other purposes." This act was amended October 7, 1885, forbidding the sale of domestic wines at public places, and in quantities less than one quart. Acts of 1884-85, p. 541. An election was held under this act, and it received the number of votes necessary for its adoption, and became operative. On November 6, 1901, the Supreme Court, in the case of Griffin v. Eaves, 114 Ga. 65, 39 S.E. 913, following the principle ruled in Papworth v. State, 103 Ga. 36, 31 S.E. 402, and subsequent cases, declared that the special local act of 1884 for Bartow county was in conflict with the general domestic wine act of February 27, 1887, and was violative of that clause of the Constitution which prohibits special legislation in any case for which provision has been made by an...
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