Wright v. City of Macon

• Decision Date: 18 May 1909
• Docket Number: 1,282.
• Parties: WRIGHT v. MAYOR, ETC., OF CITY OF MACON.
• Court: Georgia Court of Appeals

64 S.E. 807

5 Ga.App. 750

WRIGHT v. MAYOR, ETC., OF CITY OF MACON.

No. 1,282.

Court of Appeals of Georgia

May 18, 1909

Syllabus by the Court.

The Court of Appeals has full power and authority to determine whether municipal ordinances are unconstitutional.

[Ed Note.-For other cases, see Courts, Dec. Dig. § 217 ^[*]]

The General Assembly having by the general tax act expressed and established the general policy of the state with reference to the existence of "locker clubs," a municipal ordinance, inconsistent with the general policy of the state as declared by the Legislature, is void. Unless it is shown that intoxicating liquors are sold by the club or its employés, the mere assembling of liquors in a bona fide private club (whose membership is not open to the public at large) cannot be controlled by municipal regulation, if the tax imposed by the state has been paid.

[Ed Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 13; Dec. Dig. § 11. ^[*]]

Error from Superior Court, Bibb County; E. J. Reagan, Judge.

C. R Wright was convicted in the recorder's court of the city of Macon for violation of the "locker ordinance" of that city. He excepted by certiorari to the superior court, and, the certiorari having been dismissed, brings error. Reversed.

B. C. Jones and John P. Ross, for plaintiff in error.

C. H. Hall, Jr., and N.E. Harris, for defendant in error.

RUSSELL J.

The plaintiff in error was convicted in the recorder's court of the violation of what is called in the record the "locker ordinance." This ordinance is as follows:

"Be it ordained by the mayor and council of the city of Macon, and it is hereby ordained by the authority of same:

"Section 1. That it shall be unlawful for any club, corporation, or association of persons, or number of persons, in this city, whether incorporated or otherwise, to keep or to permit to be kept, in any room or place, or in any place connected therewith directly or indirectly, in which the members of such club, corporation, association of persons, or number of persons assemble or frequent, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication.

"See. 2. Be it further ordained by the authority aforesaid, that any person, member, officer, agent or servant of any such club, corporation, or association, or other number of persons violating the provisions of this ordinance, upon being arrested, tried, and convicted before the recorder, shall be punished as provided in the act creating the recorder's court of the city of Macon, and the amendments thereto; and that each day in which this ordinance shall be violated by any person or persons shall be held and deemed a separate offense."

The case was submitted to the recorder's court upon the following agreed statement of facts:

"The Benevolent and Protective Order of Elks of the United States of America was organized in the city of New York in May 1868, and since its organization has been in continuous existence throughout the United States. Beginning as a voluntary fraternal association, lodges of the order were organized in various cities in various states of the Union, which lodges created and established, by mutual consent and voluntary allegiance, a supreme governing body of the order, known and designated as the Grand Lodge of the Benevolent and Protective Order of Elks of the United States of America, and as such fraternal order was incorporated by an act of the Senate and Assembly of the state of New York on March 10, 1871. On June 19, 1895, said order of Elks filed articles of incorporation in the District of Columbia, pursuant to the laws of the United States, providing for the filing of such articles of incorporation by fraternal associations. The objects of said order of Elks are, to inculcate the principles of charity, justice, brotherly love, and fidelity, to promote the welfare and enhance the happiness of its members, to quicken the spirit of American patriotism, to cultivate good fellowship, and to perpetuate itself as a fraternal organization. By its laws it is provided that a subordinate lodge of the order may establish and maintain a club for the social enjoyment of its members, bearing the name of the order, and subject to the limitations and restrictions provided by the laws of the order; and it is provided by its laws that the membership of such club shall be limited exclusively to members in good standing in the lodge establishing and maintaining such club, and that such club shall be managed and controlled by the officers or trustees of the lodge, or by a house committee appointed by the presiding officer of the lodge for that purpose, under such rules and regulations as may be adopted by the lodge and approved by the committee on judiciary of the Grand Lodge.

"Macon Lodge, No. 230, of the Benevolent and Protective Order of Elks of the United States of America was organized in the city of Macon, Ga., in March, 1892, by authority of and pursuant to the laws of said order of Elks, as adopted and promulgated by said Grand Lodge of said order, and since said date has maintained a continuous existence in said city by virtue of a charter granted to it by said Grand Lodge, and under and subject to the laws, of said Benevolent and Protective Order of Elks of the United States of America. Pursuant to the laws of said fraternal order, the said Macon Lodge established, and for many years past has continuously maintained, a club in said city of Macon, which has been and now is known as the 'Elks' Club,' which club is maintained for the social enjoyment of the members of said Macon Lodge. The said Macon Lodge, for more than two years last past, has occupied and now occupies the entire seventh floor of what is known as the 'Grand Building,' on Mulberry street, in said city of Macon, the same being the topmost floor of said building, by absolute lease from the owner of said building, for its lodge room and club quarters, in which leased premises, to wit, the room on the seventh floor of said Grand Building, the members of said Macon Lodge assemble, frequenting at will the said lodge room and club quarters under the laws, rules, and regulations of said order of Elks and said Macon Lodge for the government of the same.

"No male persons are now or ever have been authorized or permitted to enter, assemble in, or frequent the rooms and premises of said Elks' Club, except members in good standing of said Macon Lodge, No. 230, and members in good standing in other subordinate lodges of said Benevolent and Protective Order of Elks of the United States of America (there being no other lodge of said order in Bibb county, except said Macon Lodge), and residents outside of the county of Bibb, who, by special invitation of some member of said Macon Lodge, may by such member be carried to said quarters of said Elks' Club and granted temporarily the social privileges thereof. No member of the lodge is permitted to invite or carry any male citizen of Bibb county to said lodge and club quarters not a member of the lodge. Any member of said Macon Lodge may invite or carry any lady relative or friend to the parlor and reading room of said club, and to the lodge room when the lodge is not in session. The employed servants of said Macon Lodge of Elks and its club are authorized and permitted to be and to serve in said Elks' Club quarters, hut not to enjoy any of the privileges of said club, and said servants are subject to the control and discipline of the house committee of said club, under the rules and regulations governing the same.

"On the 4th day of February, 1908, the said Macon Lodge No. 230 of the Benevolent and Protective Order of Elks of the United States of America, having theretofore caused said Elks' Club to be registered with the ordinary of Bibb county, and paid to the tax collector of said Bibb county $500 for special tax as required by the law of Georgia, did permit members of its said Elks' Club, which membership is limited exclusively to members in good standing in said lodge, to keep in a room and place forming a part of and connected directly with the aforesaid leased premises of said Macon Lodge and its club, on the seventh floor of said Grand Building, in the city of Macon, in which the members of said lodge and club are accustomed to assemble, alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication. And certain members of said lodge and club, pursuant to said permission, did, on the date aforesaid, keep Such liquors, bitters, and drinks in the place aforesaid for their own private use and control. The defendant knew of, and, as a member of said lodge, took part in granting, and assented to the grant of, said permission, and has knowledge that some members availed themselves of said permission. Such liquors were the private, personal property of each member of said lodge and club who saw fit to keep them, by the permission aforesaid, in the premises leased, occupied, and controlled by said lodge and club as aforesaid, and were so kept as to be readily identified and distinguished as the individual property of the member placing same there. No such liquors or bitters were sold or permitted to be sold or kept for sale in or about said club and lodge quarters, either directly or indirectly by any persons to any person.

"On the date aforesaid, when said members were permitted to keep and did keep such liquors as their own private personal property and for their own private personal use in the premises as aforesaid, the said defendant, C. R. Wright, was a member and officer of said Macon Lodge No. 230 of the...