Thomas v. Ragsdale

• Decision Date: 15 June 1939
• Docket Number: 12773.
• Parties: THOMAS v. RAGSDALE et al., Com'rs of Roads and Revenues.
• Court: Georgia Supreme Court

3 S.E.2d 567

188 Ga. 238

THOMAS v. RAGSDALE et al., Com'rs of Roads and Revenues.

No. 12773.

Supreme Court of Georgia

June 15, 1939

Syllabus by the Court.

1. Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that the plaintiff is interested in having the laws executed and the duty in question enforced.

2. Where a county has voted in favor of legalizing the sale of alcoholic beverages and liquors in pursuance of the act of February 3, 1938 (Ga.L.Ex.Sess.1937-1938, p. 103), the board of county commissioners, as the governing authority of the county, is vested with wide discretion in the regulation of businesses authorized by the act, but it is not authorized to prohibit such businesses and refuse to exercise its discretion.

3. Where the board of county commissioners refuses to exercise its discretion in the regulation of the sale of liquors in the territory under its jurisdiction, mandamus is the proper remedy to compel the board to act.

Grover Thomas filed a petition for mandamus against the commissioners of roads and revenues of Fulton County to compel them to regulate and license the sale of liquor. The relief sought was denied, and he excepted. The petition alleged substantially the following facts: In pursuance of the 'revenue tax act to legalize and control alcoholic beverages and liquors,' approved February 3, 1938, Laws 1937-38, Ex.Sess., p. 103, Fulton County, on March 30, 1938 voted in favor of 'taxing and legalizing and controlling alcoholic beverages and liquors.' By the terms of the act the administration of this law is placed in the hands of the State revenue commissioner, who is authorized to issue licenses and to adopt rules and regulations with reference to the sale and distribution of liquors. He is not authorized to issue a license until the applicant exhibits a license from the municipality, if the place of business is to be conducted within a municipality, 'or by the governing authorities of the county where the place of business to be conducted is located, if such place of business is outside the corporate limits of a town or city.' The county commissioners defendants, are the governing authorities of Fulton County and by the terms of the act they are charged with the duty of regulating the sale of liquors in the unincorporated areas of the county. On April 6, 1938, they passed a resolution not to issue any licenses for the sale of liquors in the unincorporated areas of Fulton County, and thereby in effect nullified the action of the people in voting to legalize the sale of liquors. On September 27, 1938, the plaintiff applied to the defendants for a license to retail liquors at 10 Roswell Road, in the unincorporated area of Fulton County. The defendants refused to issue a license, and refused to make any terms and conditions upon which they would issue a license. The plaintiff prayed for mandamus requiring the defendants to comply with the terms of the act of February 3, 1938, to fix the terms and conditions upon which liquors may be sold in the unincorporated areas of Fulton County, and to grant to the plaintiff a license upon his compliance with such terms and conditions as defendants might formulate.

The defendants filed an answer in which they admitted passing a resolution not to issue any licenses for the sale of liquor, in order to confine the sale of liquor in Fulton County to the incorporated areas thereof, because the county did not have a police force adequate to supervise and look after liquor stores out in the county. They alleged that Fulton County consists of more than 550 square miles of territory in which 10 incorporated areas are located; that part of the unincorporated area is thickly settled, but most of it is sparsely populated; and that 'in exercising their discretion in determining what, in their opinion, was the best police regulation for the unincorporated areas,' they passed the resolution above referred to. They admitted denying the plaintiff's application for a license, but alleged the sale of liquor is a privilege and not a right, and that the defendants, 'in the exercise of police power given them under the law and under the act above referred to, and acting within the scope of their duties, as commissioners and the discretion vested in them by law, declined said application.

Don K. Johnston, of Atlanta, for plaintiff in error.

Walter C. Hendrix, W. S. Northcutt, E. Harold Sheats, and Hughes Spalding, all of Atlanta, for defendants in error.

DUCKWORTH Justice.

1. We are of the opinion that the petitioner for mandamus was entitled to maintain the action. 'Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that plaintiff is interested in having the laws executed and the duty in question enforced.' Code, § 64-104; Board of Commissioners of Manchester v. Montgomery, 170 Ga. 361, 153 S.E. 34; Plainfield Consolidated School District v. Cook, 173 Ga. 447, 160 S.E. 617; Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499, 160 S.E. 620, 80 A.L.R. 735; Pearce v. Wisdom, 175 Ga. 663, 165 S.E. 574; Bankers' Savings & Loan Co. v. Better Business Division, 177 Ga. 334, 170 S.E. 291. The petition alleged that the defendants, as the governing authority of Fulton County, were charged with the duty of regulating the sale of liquor in the unincorporated areas of that county, and sought to enforce the performance of this duty. This case is distinguished from Hodges v. Kennedy, 184 Ga. 400, 191 S.E. 377, where it was sought by mandamus to compel the issuance of a license to sell beer. Since the sale of beer, like the sale of liquor, is a mere 'privilege,' it was held that one seeking a license had no such legal right as would support an action for mandamus to compel the issuance of a license. As stated above, the right involved in the instant case is a public one, and the object of the suit is to enforce the performance of a public duty; and therefore the petitioner may maintain the action as a citizen interested in having the laws executed and the duty in question enforced. Hodges v. Kennedy, supra, is controlling as to the prayers of petitioner seeking to enforce the issuance of a license to him; and as to that part of the petition seeking to require the issuance of a license to plaintiff it alleged no cause of action.

2. The next question presented is whether the county commissioners may prohibit the sale of liquors in the unincorporated areas of Fulton County. A county acts under delegated powers, and has only such powers as are conferred by statute. Albany Bottling Co. v. Watson, 103 Ga. 503, 30 S.E. 270; Town of Decatur v. DeKalb County, 130 Ga. 483, 487 61 S.E. 23; Bowers v. Hanks, 152 Ga. 659, 111 S.E. 38; McCrory Co. v. Board of Commissioners of Fulton County, 177 Ga. 242(1), 170 S.E. 18. The...