Bienert v. State

82 Ga. App. 179 (1950)

60 S.E.2d 575

BIENERT v. THE STATE.

32928.

Court of Appeals of Georgia.

Decided May 16, 1950.

Rehearing Denied July 28, 1950.

*180 Miller, Miller & Miller, for plaintiff in error.

Arnall, Golden & Gregory, Candler, Cox & McClain, Edward Andrews, Smith, Kilpatrick, Cody, Rogers & McClathchey, Morgan Belser, Kurt Holland, as amici curiae.

Oscar L. Long, Solicitor, contra.

MacINTYRE, P. J.

Georgia as a whole is a dry State and the general prohibition law as contained in Code §§ 58-101, 58-102, et seq., generally known as the "bone dry" law, is in force and effect in every county of the State unless the prohibited liquors have been legalized by statute or statute and election held in conformity with the statute in the individual counties. Prior to the effective date of the act of 1937-38 (Ga. Laws, 1937-38 Ex. Sess., p. 103) the sale of distilled spirits and whisky was a violation of the prohibition law. Bibb County, the county in which the crime was alleged to have been committed had held, under the provisions of the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess. p. 103), an election and the county had voted "wet"; that is it had voted to legalize and control in such wet county the liquors described in the act; and, distilled spirits and whisky, being described in the act, are some of the liquors which are legalized and controlled by the provisions of the act. One of the controls provided for in the act is that a wholesaler must have a wholesaler's license which "shall authorize the holder to engage in the sale of distilled spirits [which includes whisky] at wholesale by selling to the holder of a wholesale license or the holder of a retail license for the purpose of resale. Code (Ann. Supp.), § 58-1025. This being a dry State, the reason why a wholesaler, as such, can sell distilled spirits (which includes whisky) to anyone is that the provisions of the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess. p. 103) gives him such a right, if he obtains a license as provided by the act. If this provision is not complied with by obtaining a wholesaler's license, a wholesaler, as such, cannot sell the prohibited liquors to anyone. If *181 that provision is complied with, he may, as plainly stated in such provision, sell to another wholesaler or retailer holding a proper license. By this provision, he is made an exception to; that is, he is removed from the operation of the general law as to these purchasers, but as to none other. Frierson v. State, 67 Ga. App. 829 (21 S. E. 2d, 438); Garrett v. State, 71 Ga. App. 449 (31 S. E. 2d, 244). The general prohibition law (Code § 58-101 et seq., as amended by the act of 1937-38, p. 103) is one law with a local option feature. See Crabb v. State, 88 Ga. 584, 588 (15 S. E. 455); Wheat v. Bainbridge, 168 Ga. 479, 480 (148 S. E. 332); Mayes v. Daniel, 186 Ga. 345, 356 (198 S. E. 535), and is a general law as it relates to both counties, dry and wet. It provides that in any county having an election as provided in the amendatory act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess. p. 103), where "a majority of the votes cast shall be in favor of taxing and controlling alcoholic beverages and liquors, the manufacture, possession, distribution, and sale of such alcoholic beverages and liquors in such county shall be permitted in accordance with the provisions of this Chapter." Code (Ann. Supp.), § 58-1008, meaning in accordance with the provisions of the general prohibition law (Code § 58-101 et seq. as amended by the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess., p. 103).

No statute has been adopted since the Code of 1933 purporting to authorize the sale of distilled spirits without a license from some authority and this is true even as to counties where the sale is not prohibited by the act of 1937-38 (in wet counties). Distilled spirits and whisky are still prohibited liquors under Code § 58-101 et seq., as amended by the act of 1937-38 (Ga. Laws, 1937-38 et seq., p. 103), in any county where the sale is not prohibited (in wet counties) if the party selling has not obtained a license as provided by law. In other words, the sale must be in a county where it is not prohibited and the seller must also have a license permitting him to sell it in order for the sale of the distilled spirits to be removed from the operation of the law as stated in Code § 58-101 et seq., and amended by the act of 1937-38. See, in this connection, Sprayberry v. Wyatt, 203 Ga. 27, 35 (45 S. E. 2d, 625). The amendatory act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103), states that it shall be known as the *182 Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors and provides: "Licenses which may be issued under the authority of this Chapter shall be as set forth in sections 58-1024 to 58-1026 [§ 58-1024, to manufacturers; § 58-1025, to wholesalers; § 58-1026, to retailers].)) Code (Ann. Supp.), § 58-1023. Code (Ann. Supp.), § 58-1025 provides: "A wholesaler's license shall authorize the holder to engage in the sale of distilled spirits at wholesale, by selling to the holder of a wholesale license or to the holder of a retail license for the purpose of resale." Thus a wholesaler, as such, cannot obtain a license to sell distilled spirits except to another wholesaler who holds a license or to a retailer who holds a license, for purposes of resale, and if he cannot obtain a license for any other purpose and he sells to some other person the sale to such other person is not removed from the operation of the law as stated in Code § 58-101 et seq., as amended by the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess., p. 103). We think, therefore, that the accusation charges the commission of a penal offense under the laws of this State and is not subject to the demurrer.

Judgment affirmed. Gardner and Townsend, JJ., concur.

MacINTYRE, P. J. The act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103) in its title and in its body expressly states that it is an amendatory act, and when we certified a question relative to such act to the Supreme Court, in answering the question, that court, in Pierce v. State, 200 Ga. 384, 386 (37 S. E. 2d, 201), stated: "The act approved February 3, 1938 (Ga. L. 1937-38, Ex. Sess., p. 103), known as the `Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors,' very substantially amended the then-existing prohibition law in certain respects." (Emphasis added.) We are convinced therefore that the act of 1937-38 is an amendatory act.

The case of Leonard v. State of Georgia, ex rel. Lanier, 204 Ga. 465 (50 S. E. 2d, 212), cited by counsel for the defendant, does not hold that the general prohibition law, as embodied in the "bone dry" law as a whole, Code § 58-101 et seq., is repealed directly or by implication in Georgia in wet counties; but merely held that the act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103, 111, as embodied in Code, Ann. Supp., § 58-1029) was a part *183 of a later revising statute which clearly covered the whole subject-matter of an older statute, as embodied in the act of 1890-91 (Ga. L. 1890-91, pp. 132, 133; Code, Ann. Supp., § 58-601) and that the older act as embodied in Code, Ann. Supp., § 58-601 was impliedly "repealed or suspended" by the later act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103; Code, Ann. Supp., § 58-1029) because it was necessary, on account of the repugnancy between them, in order to make the later act operative, to abrogate the older law and that the later act only abrogated the older law to the extent that it is inconsistent and irreconcilable with the later act. Some of the older general local option statutes, when dealing with earlier general acts, "suspended" the prior general acts when a county had voted dry. Crabb v. State, 88 Ga. 584, 588 (supra). Some of the general local option acts, under like circumstances, used the words "removed from the operation of" the general act by the later general local option act. We think that in the Leonard case the court was using the words "repealed or suspended" more in the sense of suspended than repealed and that the Leonard case is not in conflict with what is said in the main opinion in the instant case.

In Mayes v. Daniel, 186 Ga. 345, 354 (4), the only question presented in division four of that opinion was whether the act in question "violates art. 3, sec. 7, par. 17, of the Constitution, which declares: `No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.' The plaintiffs allege: (1) Section 2 of said act seeks to amend a general law of the State by reference only to a title number of the Code. (2) Section 3 of said act seeks to amend a general law of the State by reference only to chapter numbers of the Code." The court decided this question as follows: "When we consider the manifest purpose of the constitutional provision, which was none other than that the members of the General Assembly should be fully put on notice of what law it was that the bill proposed to amend (See Fullington v. Williams, 98 Ga. 807, 810, 27 S. E. 183), and reading the act itself, we can not believe that the act should be struck down by reason of any repugnancy to the provision of the Constitution *184 above quoted." Any other statement of law in division 4 of that opinion enunciated by the court by way of illustration, argument, analogy, or suggestion was not essential to the determination of the question there presented and is obiter dictum.

This same idea, as expressed in Mayes v. Daniel, supra, is expressed in Barber v. Housing Authority of the City of Rome, 189 Ga. 155, 159 (5 S. E. 2d, 425), thus: concerning the rule where there is a failure to describe sufficiently, under art. 3, sec. 7, par. 17, of the Constitution, an act to be amended, the purpose of the requirement is to put the members of the General Assembly on reasonable notice as to the law intended to be amended or repealed so that they may ascertain if and how an old law is intended to be modified. This later case cites and relies upon the Mayes case, supra, as authority and cites Fullington v. Williams, supra; Adams v. Wright, 84 Ga. 720 (11 S. E. 893); Town of Maysville v. Smith, 132 Ga. 316, 318-320 (64 S. E. 131); Tyson v. Doerun, 155 Ga. 367 (2), 371 (116 S. E. 615); Holland v. State, 155 Ga. 795 (2), 800 (118 S. E. 203).

The statement in Womack v. State, 60 Ga. App. 761, 762 (5 S. E. 2d, 96), upon which counsel for defendant relies, that in wet counties "the old law, making it a penal offense to possess whisky or to keep it for sale at a place of business, has been directly repealed," we think, is not an accurate statement. While the statement is too broad, the case was correctly decided on its particular facts, but we think that the effect of the act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103), which permits counties to vote wet, was merely intended to suspend or remove the liquors therein described from the operation of the law as stated in Code § 58-101 et seq.

Where a county has voted wet under the provisions of the act in question, as amended, that county can be restored to its former dry status by merely holding an election under the provisions of such act as amended. No new statute repealing this act, which permits a county to vote wet, is necessary in order for the wet county to return to its dry status; for, under the act in question as amended, by an election as provided for therein the suspension of the general prohibition law, which had been brought about by the county's voting wet, could be removed and the *185 county thereby restored to its dry status. Thus, under this act as amended a county may alternately at its pleasure, within the limitations of the statute, vote wet or vote dry.

We do not think that the act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103) directly repealed the entire general prohibition law in wet counties.

Rehearing denied. Gardner and Townsend, JJ., concur.