Union & Mechanics' Club v. City of Atlanta

• Decision Date: 19 August 1911
• Citation: 71 S.E. 1060,136 Ga. 721
• Parties: UNION & MECHANICS' CLUB v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

71 S.E. 1060

136 Ga. 721

UNION & MECHANICS' CLUB v. CITY OF ATLANTA.

Supreme Court of Georgia

August 19, 1911

Syllabus by the Court.

Clubs and associations authorized by the tax act of 1909 (Civil Code 1910, § 933) to keep or permit to be kept in their club rooms intoxicating liquors, are such as are organized for the entertainment and comfort of their members, and not for gain and which have a fixed place of meeting, a definite organization, with a continuing existence, in contradistinction to an ephemeral gathering for a particular occasion, with no idea of permanency in the fellowship or constituency of its members.

The tax imposed is not an occupation or business tax, but is laid solely in the exercise of the police power of the state, and is not a license for the sale or for the keeping on hand of intoxicating liquors in any place prohibited by law.

In the absence of a clear delegation of power by the Legislature to impose and collect a tax on social clubs as a condition precedent to a license permitting them to keep on hand intoxicating liquors, a municipal corporation cannot exact such a tax, the city of Atlanta has no such power in its charter.

Inasmuch as the state, by the enactment of the general prohibition act, has made penal the sale of intoxicating liquors and the keeping on hand of such liquors at any public place or place of business, it is within the power of the city of Atlanta under its general welfare clause, to establish reasonable rules and regulations designed to regulate social clubs, so as to prevent their conduct in any other manner than as bona fide social clubs and to prevent any violation of the prohibition act.

The ordinance of the city of Atlanta, imposing a tax as a condition precedent to the issuance of a license to a social club, permitting it to keep on hand intoxicating liquor, is an effort to collect a tax not authorized by its charter, and is therefore void, and its enforcement will be enjoined.

(Additional Syllabus by Editorial Staff.)

A "place of business," as used in the prohibition act (Pen. Code 1910, § 426), is a place where a calling for the purpose of gain or profit is conducted.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by the Union & Mechanics' Club against the City of Atlanta. From an order refusing to continue an injunction pendente lite, plaintiff brings error. Reversed.

On January 19, 1911, the following ordinance was adopted by the mayor and general council of the city of Atlanta:

"Sec 2. That any firm, person, or corporation desiring to operate, maintain, and to have or open up any club wherein lockers are provided for the use of members, fees charged either for membership or for use of lockers or for other purposes, having a club-house, club-room, parlors, or other general places of meeting, shall file a petition with the mayor and general council, asking for license therefor, and such petition shall give the name of the club, the name of the president, secretary or manager in charge thereof, its location, the number of members, and the amount of entrance fees paid or to be paid, dues and charges for lockers or locker service, and such other information as will put the general council in full possession of the facts surrounding such club or proposed club, by which it can decide whether the same is a bona fide social or locker club.

"Sec. 3. That any club already licensed or hereafter licensed shall, when demand is made by any member of the general council or of the police department, at the club-room or place of meeting, exhibit the roll of membership upon which only bona fide members of the club shall be written. Said club, its officers, and employés shall at all times comply with this requirement, and shall keep said roll of membership at the club-room or place of meeting where same can at any time be produced when said demand is made.

"Sec. 4. That any social or locker club licensed as herein provided, charging membership dues and having or operating, in connection with the club, lockers or locker service or serving meals or lunches therein, or having any service such as billiards, cigars, etc., from which revenue is derived, shall pay to the city of Atlanta the sum of three hundred dollars per annum as a license or registration fee, same to be paid as other business licenses are collected.

"Sec. 5. That any person, firm, or corporation, their agents or employés, who shall maintain, operate, or carry on, or take part in the maintenance or operation of any club in violation of the provisions of this ordinance, or without securing the permit or license therefor as herein provided, or without paying the license therefor as fixed in the preceding section, shall, on conviction in the recorder's court, be punished by a fine not exceeding five hundred dollars, or sentenced to work on the public works for not exceeding thirty days, either or both penalties to be inflicted in the discretion of the recorder.

"Sec. 6. That any club, officer, or employés thereof, who shall refuse to admit any member of the general council or of the department of police therein on demand, who shall refuse to exhibit the roll of membership provided for in this ordinance, or who shall not permit an inspection of such club-room or meeting-place on demand, shall be deemed guilty of an offense, and on conviction in the recorder's court shall be punished as provided in section five of this ordinance.

"Sec. 7. That no license or permit shall be granted to any club or similar organization unless it appears that the same is a bona fide social or locker club, and not instituted or operated, with or without charter, for the purpose of providing a place wherein intoxicating liquors, beers, wines, etc., may be furnished under the form of a club, or in or at which there is now operated or maintained a bona fide social or locker club as herein provided for, and any person or persons, either by themselves or others, who shall undertake, with or without charter, to operate a club or like organization for the purpose of supplying liquors, wines, beers, etc., through the form of a club, without having, maintaining, or operating a bona fide social or locker club, shall be deemed guilty of an offense and on conviction in the recorder's court shall be punished as provided in section five of this

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