2020 Georgia Code
Title 3 - Alcoholic Beverages
Chapter 4 - Distilled Spirits
Article 3 - Local Authorization and Regulations for Manufacture, Distribution, and Package Sales
§ 3-4-46. Procedure for Conduct of Election for Purpose of Nullifying Previous Election Result

1. In any county or municipality which has at any time held a referendum election in accordance with this article, resulting in the approval of the issuance of licenses for the package sale of distilled spirits, the election superintendent of the county or municipality shall, upon the filing of a petition as provided in subsection (a) of Code Section 3-4-41, proceed to call another referendum election in the same manner as provided in this article for the purpose of nullifying the previous referendum election result.
2. In the event an election referendum is held pursuant to subsection (a) of this Code section and a majority of the votes cast are against the issuance of licenses for the package sale of distilled spirits, then no new licenses for the package sale of distilled spirits within the political subdivision conducting the referendum shall be issued and any existing licensee issued a license for the package sale of distilled spirits shall be prohibited, effective upon the expiration of such license, from engaging in any package sales of distilled spirits within the political subdivision.
3. No election held pursuant to this Code section shall be called or held within two years after the date of the declaration by the election superintendent of the results of the previous election held for such purpose under this article.

(Ga. L. 1941, p. 199, § 1; Ga. L. 1972, p. 207, § 3; Code 1933, § 5A-2310, enacted by Ga. L. 1980, p. 1573, § 1; Code 1981, §3-4-47; Code 1981, §3-4-46, as redesignated by Ga. L. 2017, p. 820, § 2/HB 485.)

The 2017 amendment, effective May 9, 2017, redesignated former Code Section 3-4-47 as this Code section; substituted the present provisions of subsection (a) for the former provisions, which read: "In any county or municipality which has at any time held an election in accordance with this article, resulting in the approval of the issuance of licenses for the package sales of distilled spirits, the election superintendent of the county or municipality shall, upon a petition signed by at least 35 percent of the registered qualified voters of the political subdivision concerned, proceed to call another election in the same manner as provided in this article for the purpose of nullifying the previous election result."; added subsection (b); redesignated former subsection (b) as present subsection (c); and substituted "declaration by the election superintendent of the results" for "declaration of the result" in the middle of subsection (c).

- Ga. L. 2017, p. 820, § 2/HB 485, repealed former Code Section 3-4-46, relating to the effect of majority vote against package sales, and enacted the present Code section. The former Code section was based on Ga. L. 1937-38, Ex. Sess., p. 103, § 4; Ga. L. 1972, p. 207, § 3; Code 1933, §§ 5A-2307, 5A-2308, enacted by Ga. L. 1980, p. 1573, § 1.

JUDICIAL DECISIONS

Constitutionality.

- This section, insofar as it authorizes holding election for purpose of nullifying previous election legalizing alcoholic beverages in county, is not unconstitutional as violative of due process on ground that no provision is made for right to contest election held thereunder or on ground that provision is so indefinite that any proceeding amounts to a taking of property of qualified distributors of alcoholic beverages without due process of law. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944).

- Constitutional attack on this section by corporations who were selling intoxicants in dry county under allegedly valid licenses was dismissed since corporations had no property rights to have such license and therefore were without standing to attack this section. DeKalb County v. Florentine Corp., 228 Ga. 228, 185 S.E.2d 85 (1971).

- The legislature intended in enacting this section only to give those counties which had voted favorably for control the same means of abolishing or repealing the control of manufacture, sale, and distribution of alcoholic beverages and liquors; the section does not render a previous election void ab initio, so as to be retrospective. Thacker v. Morris, 196 Ga. 167, 26 S.E.2d 329 (1943).

Ga. L. 1937-38, Ex. Sess., p. 103, § 4 and Ga. L. 1941, p. 199, § 1 (see now O.C.G.A. §§ 3-4-41 and3-4-46) must be construed together. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

- A cursory reading of both Ga. L. 1937-38, Ex. Sess., p. 103, § 4 and Ga. L. 1941, p. 199, § 1 (see now O.C.G.A. §§ 3-4-41 and3-4-46) would disclose that before the ordinary (election superintendent) was authorized to call an election under either section a petition signed by 35 percent or more of the qualified voters of the county must be presented. It follows that if either election be called without such petition having first been presented, such election is a nullity. Glass v. State, 75 Ga. App. 602, 44 S.E.2d 143 (1947), overruled on other grounds, Domin v. State, 85 Ga. App. 676, 70 S.E.2d 39 (1952).

Among the prerequisites to the call of an election for nullifying a previous election are: (1) no election can be called within two years after the date of the declaration of the result of a previous election; (2) no election shall be called except upon the petition of at least 35 percent of the registered qualified voters, qualified to vote in the general election immediately preceding the presentation of the petition; and (3) the election shall be held within 30 days from the filing of the petition, and notice of the election shall be published in the official gazette of the county once a week for two weeks preceding the election. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

The requirement as to notice of special election was mandatory, and failure to comply therewith vitiated election; in these circumstances, petition by licensed liquor dealers, seeking to enjoin the ordinary (election superintendent) from putting the result of such election into effect, set forth a cause of action. The prerequisite as to proper petition by 35 percent of qualified registered voters is also mandatory, and it follows that failure to comply with the mandatory prerequisite vitiates election. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

- There is a marked distinction between mandatory provisions of law in regard to calling of election and those which are merely directory to officials in holding them. A substantial violation of mandatory provisions affects validity of election, while a failure of strict compliance with directory provisions of law, or mere irregularities on part of election officers, will not generally do so; and the latter are usually the subject matter of contests. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

When petition has been acted upon and election ordered by designated authorities, presumption is that petition was in due and legal form and that it was signed by requisite percentage of qualified voters, and in absence of any evidence to the contrary, that presumption is sufficient. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944); Williams v. Gould, 203 Ga. 96, 45 S.E.2d 218 (1947).

Court of equity is not authorized to surmise or assume invalidity of signatures regularly presented to the ordinary (election superintendent), or to enjoin such officer from calling an election in the face of the ordinary's prima facie determination as to the sufficiency of the consolidated petition presented. Williams v. Gould, 203 Ga. 96, 45 S.E.2d 218 (1947).

- The action of the ordinary (election superintendent), as result of petition having been filed with the ordinary, in calling election and declaring results thereof, determines prima facie that requirements of this section providing for calling of such election have been complied with in due and legal form. This is nothing more nor less than a rebuttable presumption that the ordinary has properly performed the required duties. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944).

- Accusations and indictments charging liquor violations need not allege that counties in which they are preferred have held an election to comply with the law, this being a matter of which the courts will take judicial notice. Domin v. State, 85 Ga. App. 676, 70 S.E.2d 39 (1952).

There is no time limit for circulating a petition to call an election to determine whether sale of intoxicating liquor shall be legalized or made unlawful in county. 1954-56 Op. Att'y Gen. p. 455.

- An election which through noncompliance with the law has been ruled void by superior court is not considered an election within meaning of this section so as to prevent another election within two years. 1958-59 Op. Att'y Gen. p. 204.

RESEARCH REFERENCES

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, § 86 et seq.

- 48 C.J.S., Intoxicating Liquors, § 104 et seq.