Walker v. McNelly

• Decision Date: 17 October 1904
• Citation: 48 S.E. 718,121 Ga. 114
• Parties: WALKER et al. v. McNELLY et al.
• Court: Georgia Supreme Court

48 S.E. 718

121 Ga. 114

WALKER et al. v. McNELLY et al.

Supreme Court of Georgia

October 17, 1904

Syllabus by the Court.

1. The illegal sale of intoxicating liquors may be abated as a public nuisance by a court of equity, upon information filed in behalf of the public by the solicitor general of the judicial circuit wherein such sale is carried on.

2. The power of a municipal corporation to grant license for the sale of spirituous, vinous, or malt liquors within its incorporate limits must be derived from its charter, and unless such power is therein clearly conferred, it does not exist.

3. Nothing contained in the original charter of the town of Mineral Bluff, or in the amendatory act of December 18, 1901 (Acts 1901, p. 552), providing for the establishment and maintenance of a system of public schools in such town confers upon its municipal authorities power to grant such license.

4. A municipal corporation created under a special act of the Legislature since the passage of the act of August 26, 1872 (Acts 1872, p. 16), providing a general charter for towns and villages thereafter incorporated by the superior courts, has only the powers conferred upon it by the act granting its charter and acts amendatory thereof, and derives no power from the provisions contained in the above-mentioned act of 1872.

Error from Superior Court, Fannin County; Geo. F. Gober, Judge.

Action by J. F. McNelly, relator, and others, against J. W. Walker and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Thos A. Brown, O. R. Du Pree, and Slaton & Phillips, for plaintiffs in error.

B. F. Simpson, Sol. Gen., Wm. Butt, and H. B. Moss, for defendants in error.

FISH P.J.

The solicitor general of the Blue Ridge circuit, under and by virtue of his office, on information of McNelly, as relator, in behalf of the people living in and near the town of Mineral Bluff, in Fannin county, brought a petition against Walker, Hart, and Logan to enjoin them from conducting a barroom or place for the sale of intoxicating liquors in such town, and within three miles of Mineral Bluff Academy, located in the town. The petition alleged that the sale of intoxicating liquors within a radius of three miles of such academy was prohibited by law; that under the charter of the town the municipal authorities thereof had no authority to regulate the sale of intoxicating liquors therein; that the defendants, and each of them, were running a retail liquor saloon in the town, and within less than three miles of the academy, in open violation of law; and that this saloon was, for various reasons alleged, a public nuisance. Upon the hearing, from the evidence for the defendants, it appeared that Walker was the proprietor of the saloon or barroom, and the other defendants were salesmen employed therein, and defendants' counsel admitted in open court that the defendants had no license or authority from any one to operate the barroom, except a license from the mayor and council of the town of Mineral Bluff. There was evidence pro and con as to the effects produced by the sale of intoxicating liquors by the defendants upon the morals, peace, good order, etc., of the community. The judge granted the injunction prayed for, and the defendants excepted.

1. The main and controlling question involved in the case is whether the sale of spirituous and intoxicating liquors in the town of Mineral Bluff by the defendants, under a license issued by the mayor and council thereof, was illegal. If it was in violation of law, then, under the evidence submitted, the court was authorized to find the barroom or saloon a public nuisance, which a court of equity, in a case of this character, would abate by injunction. Lofton v. Collins, 117 Ga. 434, 43 S.E. 708, 61 L.R.A. 150. In the case cited it was held: "The illegal sale of intoxicating liquors is a public nuisance, affecting the whole community in which the sale is carried on, and may be abated by process in the name of the state." In that case, as in this, it was contended that, if the sale of intoxicating liquors complained of was illegal, the persons engaged in selling the same could be punished under the penal law, and that equity will not restrain the commission of a crime; but it was held that, as the unlawful selling of such liquors was a public nuisance, injuring the entire community, a court of equity would abate it upon information filed by the solicitor general of the circuit in which the sale was carried on.

2. In the view which we take of the case, it is not necessary for us to decide whether the act of the Legislature approved August 28, 1889 (Acts 1889, p. 1340), which declares that "it shall not be lawful for any person or persons to sell spirituous, malt or intoxicating liquors within a radius of three miles of Mineral Bluff Academy, in the town of Mineral Bluff, in Fannin county, Georgia," is or is not unconstitutional. This question was presented to the court below, and has been argued here, but the judgment of the court below can and should be upheld irrespective of its determination. Unless the Legislature has conferred upon municipal authorities the power to grant license to sell spirituous or intoxicating liquors, no such power can be lawfully exercised by them, and license to sell such liquors must be procured from the ordinary or county commissioners of the county wherein such liquors are to be sold. Pol. Code 1895, § § 1519, 1538; Sanders v. Town Commissioners of Butler, 30 Ga. 679; Ordinary v. Retailers, 42 Ga. 325. In the case last cited it was held that the power conferred upon the municipal authorities of the city of Milledgeville to pass "such ordinances as are essential to the welfare and security of the city and the preservation of the good order and peace of the same" was not sufficient to authorize them to grant license for retailing spirituous liquors within the corporate limits of the city. Warner, J., said: "From the statement of facts disclosed by the record in this case the city of Milledgeville has no express authority conferred by its charter to grant licenses for retailing spirituous liquors within the corporate limits thereof. Until such power shall be expressly conferred on the city authorities to grant such license, the ordinary of the county, under the general law of the state, has the power and authority to grant the same. Code 1868, § § 1432, 1435; Sanders v. The Commissioners of Butler, 30 Ga. 679." A comparison of the sections of the Code of 1868 cited by the learned judge with sections 1519 and 1538 of our present Political Code will show that the principle ruled in that case is controlling in the present one, unless the Legislature has conferred upon the municipal authorities of the town of Mineral Bluff authority to grant license to sell spirituous, vinous, or malt liquors within its incorporate limits. When that case was decided, under the general law of the state the authority and discretion to issue license to sell spirituous liquors within the limits of a given county existed only in the ordinary of such county. An exception to this general law existed when the Legislature had conferred the power to issue license for the sale of such liquors within the incorporate limits of a particular town or city upon its municipal authorities. By reference to the above-cited sections of our Political Code it will be seen that under the general law of the state the authority and discretion to grant license to sell spirituous, vinous, or malt liquors in...