Turner v. Mayor of Forsyth

• Decision Date: 15 April 1887
• Citation: 3 S.E. 649,78 Ga. 683
• Parties: TURNEI, and another v. MAYOR, ETC., OF FORSYTH.
• Court: Georgia Supreme Court

3 S.E. 649

78 Ga. 683

TURNEI, and another v. MAYOR, ETC., OF FORSYTH.

Supreme Court of Georgia

April 15, 1887

Error from superior court, Monroe county; BOYNTON, Judge. (At chambers.)

A. D. Hammond, B. S. Willingham, and T. B. Cabaniss, for plaintiffs in error.

Robt. L. Berner, for defendants.

BLANDFORD J.

On the fifth of March, 1875, an act was passed by the legislature to incorporate the city of Forsyth, and by the fifth section of that act the mayor and aldermen were given power "to pass ordinances regulating the management of market-houses private and public transportation through the city, bar rooms and saloons licensed by them;" and by the twelfth section of the act, they were vested "with full and exclusive power to regulate, control, and direct the sale of ardent spirits, malt liquors, wines, and cider, within the corporate limits of said town; impose such restrictions charges, conditions, and penalties, upon the same as they, or a majority of them, may deem necessary and proper, not repugnant to the constitution and laws of this state." In 1882, the legislature passed a law applicable to the county of Monroe (Acts 1882-83, p. 548) to prohibit the sale of spirituous and malt liquors in that county, and it was left to a vote of the people to say whether they would adopt it or not. They adopted it. By the sixth section of the act it is provided "that the provisions of this act shall not prevent practicing physicians furnishing liquors themselves as medicine to the patients under treatment by them," etc.

It is clear, we think, that when this act was passed by the legislature, and adopted by the people of Monroe county, all power over the subject of granting license and regulating bar rooms, etc., was taken away from the city of Forsyth. This was a law applicable to the whole county. After the passage of this law, the mayor and council passed an ordinance by which they directed that all physicians practicing medicine within that town or city, should make monthly returns to the council, giving a statement of their business, and for whom they furnished liquor; and it provided a certain penalty for failure to comply. The plaintiffs in error, who were practicing physicians in that town, refused to comply with the ordinance; and they were arrested by the order of the municipal authorities, and steps were taken to prosecute them before the authorities for violation of this ordinance. They made application for a writ of prohibition to the superior court, to prohibit the mayor and council from trying them, on the ground that this ordinance was contrary to law. This was refused by the court, and to this refusal plaintiffs in error excepted, and say that the court erred in not granting the writ of prohibition.

The main question in the case is, whether the mayor and council had the right to pass such an ordinance. We do not think they had. If they had such a right, it must have been conferred upon them by some act of the legislature; and the only act shown us on this subject, or of which we have any knowledge is theé act of 1875, incorporating this city, to which I have already called attention. That act authorized them to regulate bar rooms and saloons, and unless a physician is a bar room or a saloon, they would have no right to regulate him. They had a right to regulate the sale of spirituous liquors in the city of Forsyth, under their charter, prior to the adoption of this local option act of 1882, but when that was passed, they had no right to regulate any sale of spirituous liquors by...