Sasser v. Martin
| Decision Date | 07 August 1897 |
| Citation | 29 S.E. 278,101 Ga. 447 |
| Parties | SASSER v. MARTIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The item in the words below quoted, occurring in section 529 of the Code of 1882, fixing county charges for licenses to sell spirituous liquors, viz. "To retail spirituous liquors $25.00," and the provisions of sections 1419 and 1422 of that Code, even when construed all together, cannot be regarded as constituting, within the meaning of the constitutional provision below mentioned, a "general law," the existence of which would render a special act prescribing the method of granting such licenses in a given county, imposing upon applicants for the same conditions not embraced in the second of the above-cited sections, and fixing the license fee at a sum other than $25, violative of that clause of the constitution of this state which declares that "no special law shall be enacted in any case for which provision has been made by an existing general law."
Error from superior court, Bulloch county; R. L. Gamble, Judge.
Application for mandamus by S. S. Sasser against C. S. Martin, ordinary Writ denied, and applicant brings error. Affirmed.
Cason & Everitt and J. K. Hines, for plaintiff in error.
The legislature of Georgia, by an act approved September 5, 1879 (Acts 1878-79, p. 381), undertook to prescribe the method of granting license to sell spirituous or intoxicating liquors in the county of Bulloch, and fixed the fee for same at the sum of $5,000. Section 3 of that act prescribed a punishment for any person who should sell spirituous or intoxicating liquors of any kind in Bulloch county without the license provided in the act. It may be stated, in general terms, that the first section of the act referred to provides that the county authorities of Bulloch county shall not grant to any person license to sell spirituous or intoxicating liquors except upon written petition of the applicant, stating the place at which he desires to sell, and showing, by indorsement thereon, the written consent of two-thirds of the qualified voters living within three miles of the place so designated. The second section of the act provides that the applicant for such license, in addition to the foregoing described petition, shall give the bond and take the oath required by law for retailers, and shall pay to the ordinary or board of commissioners of roads and revenue of the county a license fee of $5,000. In the case of Sasser v. State, 99 Ga. 54, 25 S.E. 619, it was held that the third section of the act above referred to was unconstitutional, because that section of the act contained matter different from what is expressed in its title. The legal proposition submitted in the present case involves the constitutionality of the act as a whole. The plaintiff in error applied to the ordinary for a license to retail spirituous liquors in Bulloch county and tendered him the sum of $25. The ordinary refused to grant the license, putting such refusal, not upon his discretion, but because the first and second sections of the act before referred to prohibited him from so doing, expressly stating in his order of refusal that he was left no discretion in the matter, and that, if he had exercised a discretion, he would have granted the license. The plaintiff in error thereupon applied for the writ of mandamus to compel the ordinary to grant such license on such tender. The court below refused to grant the writ of mandamus, and the exception to such refusal is now here to be considered.
Recognizing that very many counties in the state of Georgia have had local acts on the subject of retailing spirituous liquors since the constitution of 1877 was adopted, we prefer to pass the consideration of minor questions, and place our decision on the validity of the act. It is well to understand that this act of the general assembly, when it came under review in the case of Sasser v. State, supra, was not pronounced unconstitutional, further than the third section of the act, which provided for the punishment of a person who violated its provisions. The matter of punishment for a sale of liquor in violation of its terms not being referred to in, nor covered by, the title of said act, that section was, in consequence, held unconstitutional. The same objection cannot be urged to other sections now under consideration, because the title of the act is: "An act to prescribe the method of granting license to sell spirituous or intoxicating liquors in the county of Bulloch, and to increase the fee for the same to five thousand dollars." Here the main question to be considered is the right of the general assembly to fix the fee for retailing liquors in Bulloch county at the sum of $5,000, and the title of the act expressly covers this point, as well as the change in the method of granting a license. The contention of the plaintiff in error is that the act in question, leaving out the third section, is unconstitutional, because it is a local act, passed since the constitutional provision of 1877 was adopted, and that that instrument (article 1, § 4, par.1) provides that "laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provisions has been made by an existing general law," and, this being a special law for Bulloch county, it must be held to be unauthorized by the constitution, because there is an existing general law providing for the granting of license to retail spirituous liquors in the several counties of this state. The learned counsel for the plaintiff in error, who so strongly presented his case, refers us to certain sections of our Code and acts of the general assembly which he claims prescribe a general law on this subject. He insists that the provisions of section 1419 of the Code, which points out the method by which license to retail spirituous liquors may be granted,--that is to say, the person applying must petition the ordinary, who has power to grant or refuse the application, and that, if the license is granted, a bond shall be executed, conditioned to keep an orderly house, and to abide faithfully by the oath to be taken by the applicant as prescribed therein,--as well as the amendment thereto made by an act of the general assembly approved December 22, 1884 (Acts 1884-85, p. 42), which regulates the quantity to be sold at less than one gallon, etc., coupled with Code, § 529, which, in a schedule of charges fixed for licenses in various cases, declares that the license to sell spirituous liquors by retail is $25, make a general law in relation to the retail of spirituous liquors and the granting of license for the same, and that, as the act under consideration varies this general law, it must be held obnoxious to the constitutional provision above quoted; and that, under this general law, on the tender to the ordinary of Bulloch county the sum of $25, and the offer to take the oath and make the bond prescribed in the Code, this applicant is entitled to receive a license to retail spirituous liquors in said county, or, at least, have the ordinary exercise his discretion in the matter of granting the same.
The plaintiff in error has cited many cases which he considers as authority for the ruling which he invokes. Among others reference is made to the case of County of Dougherty v. Boyt, 71 Ga. 484. The facts were that a local act for Dougherty county was passed authorizing an election to be held by the citizens of that county as to whether or not bonds should be issued by said county for a particular purpose. This act was passed on the 10th of September, 1879. The same session of the general assembly passed a general law in respect to the manner in which the counties and municipalities in this state should hold elections to determine the issue of bonds, etc. The local act provided for an election in a different manner, with different notices and by different voters, with regard to registration, than was provided by the general law of 1879. The question being made, it was ruled that, after the enactment of the general law, when a second local act was passed, seeking to revive and continue the first local act in force, the act so seeking to revive and continue the local act first passed was unconstitutional. This ruling was based on the broad proposition that there was a general law in force in relation to the subject-matter, and that the local act, which undertook to provide for the same subject-matter, was violative of the constitutional provision hereinbefore referred to. It will be noted that the opinion of the court in that case dealt with the last local act passed after the general law was made, and it was held that this local act was in conflict with the provisions of the general act, and was clearly unconstitutional. The next case cited is that of Elliott v. Gammon, 76 Ga. 766, which was in relation to the debt which the county of Floyd might incur under the constitution. A review of it does not disclose any ruling in conflict with the decision here made. In the case of Houston Co. v. Killen, 76 Ga. 826, to which we have been referred, there was an amendment made by the general assembly in 1883 to an act passed in 1877 in regard to the employment of convicts on the public roads in Houston county. It was ruled there that there was a general law on the subject, and that the amendment to the original act conflicted with such general road laws of the state, and, consequently, that the local act was unconstitutional and void, and that no recovery could be had on a contract made under it. Again, in Maxwell v. Tumlin, 79 Ga. 570, 4 S.E. 858, to which our attention has been directed, it was held that the legislature, having passed a...
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