Opinion
16975, 16990.
FEBRUARY 14, 1950.
Petition for injunction. Before Judge Crow. Gray Superior Court. December 19, 1949.
Maston O'Neal, Solicitor-General, and Cain Smith, for plaintiff.
L. H. Foster and Bell Baker, for defendants.
Under the facts and pleadings in this case, the judgment of the court below, in so far as it refused to enjoin the defendant, and in so far as it passed upon the validity of the tax in question, was error.
Nos. 16975, 16990. FEBRUARY 14, 1950.
The Solicitor-General, upon information of named citizens of the Town of Whigham as relators, brought a petition against the Town of Whigham, the Mayor and Council, the Clerk of the municipality, and Sallie Thomas, Maggie Walker, and McCorkle's Cafe, in which it was alleged in substance that the Town of Whigham had enacted an ordinance, the purpose of which was to permit the sale of beer within the municipality; that the ordinance, after providing rules for the regulation of the sale of beer, contained the following provision: "No firm, person or corporation to whom a permit and license has been issued under this ordinance shall purchase any beer or malt beverage for the purpose of resale in the Town of Whigham, Georgia, unless they purchase the same from the Town of Whigham, Georgia, or its legally appointed dealer or representative"; that the last three named defendants had been issued a license to sell beer under the provisions of the ordinance. The petition prayed that all defendants be enjoined from operating under the provisions of said ordinance.
The defendants' answer admitted the passage of the ordinance as contended, and the issuance of the licenses to sell beer under the provisions of the ordinance, but disclaimed any intention on the part of the Town of Whigham to engage in the business of selling beer, and contended that the provisions of the ordinance were intended to insure the collection of a special five-cent excise tax on each bottle of beer sold. The Town of Whigham attached to its answer a copy of a proposed amendment to the ordinance, which had not, on the date of the hearing, been enacted, which would simply levy an excise tax on each bottle of beer sold, and provide that the retail dealers in beer should purchase beer only from such distributors or wholesale dealers as had been authorized by the Town of Whigham.
The case was tried by the trial judge on the pleadings, and at the conclusion of the hearing, a previous temporary restraining order was dissolved in so far as it restrained the Town of Whigham from granting and issuing licenses for the sale of beer, and in so far as it restrained the other defendants from selling beer under the licenses that had been issued to them. The Town of Whigham was restrained from engaging in the business of selling beer, and from collecting the excise tax, but was relieved of this restraint upon condition that the city execute a bond in the amount of $3000, conditioned to hold and set apart all taxes collected, to answer the final judgment of the court in this case. The plaintiff in error excepted to this judgment. The defendant in error, by cross-bill, excepted to that portion of the judgment holding the collection of the excise tax to be illegal, and providing for a bond to account for the tax collected, pending the final judgment in this case.
Much is said in the briefs in this case as to whether or not the Malt Beverage Act of 1935 (Ga. L. 1935, p. 73) had the effect of repealing sec. 4, Ga. L. 1907, p. 970, which prohibited the sale of beer in the Town of Whigham, and also as to the validity of the excise tax. This case must be decided before reaching either of these questions.
"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 instituted in the name of the State." Lofton v. Collins, 117 Ga. 434 (3) ( 43 S.E. 708). See also Dispensary Commissioners of Lee County v. Hooper, 128 Ga. 99 (3) ( 56 S.E. 997). This court, in Walker v. McNelly, 121 Ga. 114, 120 ( 48 S.E. 718), said: "As the sale of spirituous, vinous, or malt liquors, without first obtaining a license from the authorities authorized by law to grant license for such purpose, is a violation of the penal laws of the State (Penal Code, §§ 431, 433), and as the only license under which the defendants were conducting the barroom in the Town of Mineral Bluff, was one from the mayor and council of the town, which, for the reasons above given, was void, they were engaged in the unlawful sale of such liquors in that town, and the business in which they were engaged could, as we have seen, be abated by injunction as a public nuisance."
In the instant case, the trial court was dealing with a situation that put the Town of Whigham squarely in the beer business. Those to whom licenses to sell beer had been issued could not sell beer unless they first bought the beer from the municipality, or its duly approved representative. Certainly this put the municipality in the business of a wholesale beer dealer. There is no law permitting a municipality to become engaged in the business of selling beer. The ordinance in question is, therefore, void, and the licenses purporting to be issued by virtue of the void ordinance, are likewise void. Any proposed amendment to the ordinance could not change the situation. The court could not, in advance, pass upon this proposed amendment. Bagby v. Bowen, 180 Ga. 214 ( 178 S.E. 439).
It follows that the judgment, in so far as it refused to enjoin the defendant, was error, and it was also error to pass upon the validity of the excise tax.
Judgment reversed on both the main and cross-bills of exceptions. All the Justices concur.