Rozier v. Redwine, 18732
| Citation | 85 S.E.2d 34,211 Ga. 208 |
| Decision Date | 09 November 1954 |
| Docket Number | No. 18732,18732 |
| Parties | James M. ROZIER et al. v. Charles D. REDWINE, Commissioner of Revenue. |
| Court | Georgia Supreme Court |
James M. Rozier and Brunswick Distributing Company brought a petition for injunction in Fayette County against Charles D. Redwine, in his official capacity as Commissioner of Revenue of the State of Georgia. It was alleged that: Rozier was issued Wholesale License No. 1 to sell alcoholic beverages and liquors at wholesale in the State through the year 1954, and he executed a compliance bond in the amount of $5,000, which was deposited with the commissioner. Since receiving the license, he has been engaged in the wholesale business in approximately thirteen counties in Southeast Georgia, including Glynn County, where he resides and where the wholesale business is located. The commissioner is attempting to cancel the petitioner's license and to forfeit his performance bond. Citations were issued, requiring the petitioner to show cause before the commissioner on May 25, 1954 why his license should not be canceled. The petitioner has been charged with selling whisky to non-licensees, and violating Executive Order 603 (which purports to regulate the receipt of alcoholic beverages by wholesale licensees). No bill of particulars has been furnished to the petitioner to acquaint him with the alleged offenses with which he is charged, although he has demanded such a bill of particulars. The power to cancel licenses is given to the commissioner under stated subsections of Code Ann.Supp. § 58-1022, Ga.L.1937-38, Ex.Sess., p. 108.
It is contended that the attempt to cancel the petitioner's license is unconstitutional for numerous reasons. The contentions relate generally to the failure of the commissioner to make regulations to implement the law giving him authority to cancel licenses, the lack of rules giving the petitioner the right to subpoena witnesses, and the requirement that he show cause in Atlanta instead of his own county, where witnesses will be available to him.
The petition prayed that the defendant be temporarily and permanently enjoined from canceling the license and forfeiting the bond of the petitioner, and from proceeding with the hearing on May 25.
The commissioner filed a general demurrer to the petition. At the hearing counsel for the commissioner made an oral motion to dismiss the case on the ground that the petition was a suit against the commissioner in his official capacity, and thereby a suit against the State of Georgia in its sovereign capacity. The trial judge sustained the demurrer and the motion to dismiss, and the exception is to that judgment.
Colon J. Cogdell, Brunswick, Christopher & Futral, Griffin, for plaintiffs in error.
Eugene Cook, Atty. Gen., John W. Wilcox, Asst. Atty. Gen., Joel J. Fryer, B. D. Zellars, Atlanta, for defendant in error. Syllabus Opinion by the Court
1. The "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," Ga.L.1937-38, Ex.Sess., pp. 103-124, Code Ann.Supp. Chapter 58-10, provides that the State Revenue Commissioner shall have...
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...and this court has so recognized. See e.g., Walnut Transfer and Storage Company v. Harrison, 185 Ga. 720, 196 S.E. 432; Rozier v. Redwine, 211 Ga. 208, 85 S.E.2d 34; Farr v. Williams, 214 Ga. 525, 106 S.E.2d 14; City of Carrollton v. Word, 215 Ga. 104, 109 S.E.2d 37; Hawes v. Connor, 224 Ga......
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