Thomas v. Board of Com'rs of Chattooga County

Decision Date07 May 1943
Docket Number14512.
Citation25 S.E.2d 647,196 Ga. 10
PartiesTHOMAS v. BOARD OF COM'RS OF CHATTOOGA COUNTY.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. The provision in the wine act of 1935, that 'Any county may, upon petition signed by fifteen per cent. of its registered voters, call an election to determine whether or not the manufacture and sale of wines shall be prohibited in such county,' having been carried forward and made an integral part of the amendatory act of 1937, was not stricken from the latter act by the act of 1941, purporting to repeal the act of 1935 as amended by an act of 1938, but not referring to the act of 1937.

2. Repeals by implication are not favored; and when the act of 1941 is considered as a whole, and with due reference to its caption and repealing clause, it cannot properly be construed as intending to affect the provision for election as contained in the act of 1937.

3. Under the preceding rulings as applied to the instant case it appearing that an election was held in Chattooga County in December, 1942, to determine whether the sale of wine should be prohibited in that county, and that the result was against the sale, the court did not err in dismissing the petition for mandamus, and denying a mandamus absolute, to compel the board of commissioners to issue to the plaintiff a license permitting him to sell wine in that county; his sole contention being that the provision for such election had been repealed.

Wright Willingham & Fullbright, of Rome, for plaintiff in error.

James Maddox, of Rome, for defendant in error.

BELL Presiding Justice.

On January 6, 1943, Fred Thomas instituted an action against the board of commissioners of roads and revenues of Chattooga County, and its members, seeking the writ of mandamus to compel the defendants to issue to him a license to sell wine in that county, without the limits of any city, town, or village. The defendants filed a demurrer and an answer. It was stipulated that an election was held in Chattooga County on December 5, 1942, to determine whether the sale of wine should be prohibited, and that the result was against the sale. The court, considering the entire case as thus presented, sustained the demurrer, and denied the prayer for mandamus; and the plaintiff excepted. The defendants relied on the election as determining that the sale of wine would now be unlawful in Chattooga County, while it was contended by the plaintiff that the provision for local or county elections, as it formerly existed, had been repealed.

In view of these contentions, it is necessary to examine in detail several acts of the General Assembly relating to the manufacture and sale of wine. The provision for county elections with other provisions was originally contained in section 4 of the act of 1935, the entire section reading as follows:

'Sec. 4. Be it further enacted hereby, that if any Georgia producer of wine, or wines, desires to sell his product at retail, he may do so in any county where such sale is not prohibited by filing with the ordinary of such county an application in which he shall describe the place at which he desires to retail such wine, and the ordinary shall keep a list of such applicants open to public inspection.

'Any county may, upon petition signed by fifteen per cent. of its registered voters, call an election to determine whether or not the manufacture and sale of wines shall be prohibited in such county; and any county may, after hearing had before the superior court, close any place retailing wines, which is not conducted in an orderly manner.

'In any county where alcoholic beverages may be legally sold, any person, firm or corporation may establish wineries for the manufacture, storage, and sale of wines made from Georgia crops, under such reasonable rules and regulations as may be promulgated by the Commissioner of Agriculture, with the approval of the Governor; and the Commissioner of Agriculture is hereby authorized to formulate and publish such rules and regulations, which shall have the force and effect of law after approval by the Governor.' Ga.L.1935, p. 492.

At its regular session in 1937, the General Assembly passed an act, section 2 of which purported to amend section 4 of the act of 1935 as quoted above, by striking and repealing the first paragraph of said section, 'so that said section [the said section 4] when amended shall read as follows:

'Section 4. Any county may, upon petition signed by 15% of its registered voters, call an election to determine whether or not the manufacture and sale of wines shall be prohibited in such county; and any county may, after hearing had before the Superior Court, close any place retailing wines, which is not conducted in an orderly manner.'

The act of 1937 also amended the former act by striking from section 1 the provision as to freedom from taxation, and providing with particularity for taxation and regulation of the manufacture and sale of domestic wines, as well as the sale of foreign wines. It contained eleven sections in all, including the section as to repeal of laws in conflict. As will be noticed, the third paragraph of original section 4 of the act of 1935 was not mentioned. Ga.L.1937, p. 851. At the extraordinary session held next afterwards, the act of 1937 was amended by changing certain of its provisions relating to taxation, but no reference whatever was made to the provision as to county elections; the amendatory act here referred to having been approved on February 16, 1938. Ga.L.Ex.Sess.1937-1938, p. 185.

Next and finally came the act of March 27, 1941, described in its caption as an act to amend the act of 1935, 'as amended by Act approved February 16, 1938, extra session Laws of Georgia 1937-38, pages 185-188, by providing for the licensing of retail dealers and by providing for a license tax on retail dealers by county and municipal authorities; to change the rate of taxation; to authorize the revocation and declination of licenses; and for other purposes.' Ga.L.1941, p. 234. In section 1 of this act of 1941, it was declared that the act of 1935 be amended by repealing and striking from the said act the entire section 4 thereof, and by substituting in lieu thereof a new section 4, to read as follows:

'Section 4. Be it further enacted that when any retail business, that is the business of retailing wine, allowed under the provisions of this Act, is proposed to be carried on within the corporate limits of a municipality, the person, firm or corporation desiring to engage in the business of retailing wine shall be required to pay to the proper authority designated by the governing body of such municipality such license fee as may be fixed by the said governing body, which license shall apply to and be required for each place of retail distribution in said municipality. It is further provided that when any of said businesses retailing said wines are licensed by municipal authority, no county license fee shall be required in addition thereto.

When any business of retailing wine is located outside a municipality, the governing authority of the county in which the said business of retailing wine is located, is authorized to fix an annual license fee upon the said business of retailing wine and the governing authorities of any municipality or county may upon proper cause and hearing revoke any license for the retail sale of wine or the governing authorities of any municipality or county may refuse to grant such license upon proper cause.'

The act of 1941 contained only three sections. Section 1 has already been stated. Section 2 amended the act of February 16, 1938 as to matters relating to taxation, and section 3 contained a repealing clause as follows: 'All laws or parts of laws relating directly or indirectly to wine and the levy and collection of tax thereon which are manufactured, sold, possessed, or offered for sale within this State be and the same are hereby expressly repealed.' As will be observed from the foregoing résumé, the provision for local or county elections to determine whether the manufacture and sale of wines shall be prohibited in a particular county appeared originally in section 4 of the act of 1935, but it also appeared in totidem verbis in the amendatory act of 1937. It thus became also an integral part of the latter act; and the real question is whether it was swept from both acts by the act of 1941. Counsel for the plaintiff contend that there was both an express and an implied repeal, their reasoning, as we understand it, being as follows: (1) Section 3 as last quoted, supra, amounted to an express repeal of such provision as to county elections, as it appeared in both the former acts; (2) the act of 1941 purports to deal exhaustively with the same subject matter, namely, the manufacture and sale of wine, and for this reason must be considered as an implied repeal of the provision, as it appeared in any previous statute; and (3) the act of 1941 in repealing section 4 of the act of 1935 necessarily by implication struck and repealed so much of the...

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