Mayor of Rome v. Lumpkin

By the Court. Warner, J., delivering the opinion. From the record in this case, it appears that the defendants in error were fined twenty-five dollars for an alleged violation of [448] the corporation laws of the city of Rome in this, that they retailed spirituous liquors, within the limits of said corporation, without having obtained a license from the corporate authorities of the city, as required by an ordinance thereof. The defendants obtained a certioriari from the Superior Court, directed to the Mayor and Aldermen of the city, and upon the hearing thereof, the Superior Court reversed the judgment of the City Council, and sustained the certiorari; whereupon, the City Council excepted, and now assign the same for error here. [1.] On the 29th December, 1847, the city of Rome was incorporated,and on the same day, the defendants in error obtained from the Clerk of the Inferior Court of Floyd county, a license to retail on the south side of Broad street, for one year from that date-By the 18th section of the Act of incorporation, the Mayor and City Council, are empowered to license persons to retail, and sell by retail, spirituous liquors within the city ; and that no person shall sell by retail any spirituous liquors, within the same, without first obtaining such license, for which they shall pay a sum not exceeding fifty dollars. Acts of 1847, p. 55. The date of the ordinance of the City Council of Rome, is not made to appear by the record; but it must'necessarily have been subsequent to the date of the license from the Clerk of the Inferior Court. At the time the defendants in error obtained Iheir license from the Clerk to retail in the county of Floyd, for one year, there was no law in existence, enacted by the corporate authorities of the city of Rome, which required a license to be obtained, for retailing within the limits of the city ; and the question now is, whether the defendants in error can be required, after paying the sum required by the Act of 1809, to the county for license to retail within the limits thereof, to pay another sum for license to retail, to the corporation, within the same county. We are of the opinion, when the defendants in error paid to the Clerk of the Inferior Court of Floyd county, the amount of money required by the Act of 1809, and obtained a license to retail spirituous liquors within the limits of the county, for the period of one year from the date thereof, in consideration of such payment, the ordinance of the City Council of Rome, enacted and promulgated subsequent to the obtaining such license, cannot impair or defeat the right of the defendauts so to retail, for the period of time stipulated in sucb license. We think it is quite apparent, the Legislature did [449] not intend the retailer of spirituous liquors should pay for, and obtain license, from both the county and the City Council. The twenty-seventh section of the tenth division of the penal code, imposes a penalty upon all retailers of spirituous liquors, without a license from the Inferior Court of the county, except, in corporations, or cities, where by law, authority to grant- licenses is vested in the corporate authorities of such towns, or cities. Prince, 649. When a retailer retails within the limits of a corporate town, or city, authorised by law to grant license, he is not indictable for retailing without license from the Inferior Court. If the corporation ordinance of the city of Rome had been enacted, in accordance with the provisions of the Statute prohibiting the retail of spirituous liquors, at the time the defendants obtained their license from the Inferior Court, then they would have been required to procure a license from the corporate authorities of the city, to retail within its limits, and not from the Inferior Court ; but having obtained a license from the Inferior Court, in accordance with the law, and having paid a valuable consideration therefor, before the corporate authorities had enacted any law or ordinance upon the subject, they will be entitled to the full benefit of their contract under the law, as it stood at the time they obtained their license to retail, within the limits of the county of Floyd, without the payment of any additional sum of money, to the corporation. Let the judgment of the Court below be affirmed.