Mayor of Cuthbert v. Conly

By the Court. Lumpkin, J., delivering the opinion. A bill was filed by the defendant against the mayor and council of the city of Cuthbert, praying an injunction against the said authorities from prosecuting him for retailing spirituous liquors under their ordinance. The injunction was granted, and this order is excepted to, and now assigned as error. The facts are as follows: The Legislature, on the 17th of December, 1859, conferred upon the corporate authorities of the city of Cuthbert the power to regulate retail licenses in that city. The defendant claims that he took out license from the Clerk of the Inferior Court of Randolph county, on the 31st of the same month, and that the city ordinance, which he is charged with violating, was not passed till the 27th of January, 1860. He claims,' therefore, the right to sell for one year, under his State license, and the decision of this Court, in Mayor, &c., of Rome vs. Lumpkin & Underwood, (5 Ga. Rep., 447,) is cited in support of this position. Owing to relationship to one of the parties, I did not preside in that case; and while I am satisfied with the judgment of the Court, it not appearing affirmatively, that the Act of the Legislature, conferring upon the city of Rome the power [214] to regúlate the retail license, was passed prior to the issuing of the license by the State,—they bear date on the same day— I must say, however, that the reasoning in that case is not, to my mind, very conclusive.' In Floyd vs. The Commissioners of the Town of Eatonton, (14 Ga. Rep., 354,) the question was elaborately discussed, and this Court held., that where, by law, the corporate authorities are empowered to grant license, the jurisdiction of the State over the subject is withdrawn: so, that from the 17th of December, 1859, to the 27th of January, 1860, there would have been no law upon the subject of license but for the Act of 1854, which was passed by the Legislature upon the suggestion of this Court, to provide for this defect in the law as it then stood. Under the old law, Vm. G. Conly could have sold, without license, until the Ordinance of 27th January, 1860, was passed. By the Act of 1854, (pamphlet, p. 83,) the retailer may take out license from the Inferior Court, to screen himself from punishment, until the municipal authorities that have been clothed with power to regulate licenses shall act upon the subject; still, he does so with his eyes open, and subject to any additional restriction which they may impose upon his business. Such was the intention and proper construction of the Act of 1854. The right to regulate the retail license, then, in the city of Cuthbert, having been conferred by the Legislature before the county license was issued to Conly, if, indeed, it ever was issued, we hold, that he took the same subject to the further action of the Board upon the subject, and that the Judge erred in restraining the mayor and councilmen from the rightful exercise of their power in enforcing their ordinance. Judgment reversed.