Gilham & Brown v. Wells

Bleckley, Justice. It is impossible to ignoro the evils of intemperance or the blessings of religion. bio candid observer can fail to notice them or to be impressed by them. That the vocation of retailing spirituous liquors promotes intemperance is certain; nevertheless, a retailer is entitled to all his legal rights, and they cannot be denied to him in the interest of religion, great as it is, or in any other interest. No court can mould its decisions by a higher standard of morality than the morality of the law. Law is the measure of forensic justice. So far as I know, the conrt-house is the only place on earth where the vicious and the virtuous may contend upon perfectly equal terms, receive the same patient and impartial hearing, and have their respective dues, whatever they may be, meted out in the decision. It is this characteristic, more than any other, which entitles the court-house to be called a temple of justice. .1. By charter, the mayor and council of the town of Stone Mountain have power “to do and perform all things toward keeping the peace, preventing vagrancy, lewdnesp, violations,of the sabbath, playing at cards, or at any other game or sport at which money is usually won or lost, take all means to cause the streets to be worked, nuisances to be removed, and to do all and every act they may think proper to preserve the morals, health and good order within the corporate limits of said town, as fully and as effectually as if a grant of power were hereby given them in every case which may arise, and power to grant or refuse license for peddlers, and to pass all laws, ordinances and by-laws for the government of the same, so as to enable them to do and perform all acts not inconsistent with the laws of the United States or the state of Georgia;” also., “to abate nuisances and enforce proper police laws;” also, “ to impose such lines not exceeding fifty dollars, or imprisonment in the calaboose not exceeding twenty days, or both, for the violation of any of the laws or ordinances of said town within — 195 — its corporate limitsalso, “ to grant or withhold, to any person or persons, license to retail and sell spirituous liquors within said limits, and in no case shall the license be tor a larger sum than two hundred dollars for twelve months, and no license shall be granted for a less time, and the person receiving the same shall execute bond and security to said mayor and his successors in office, conditioned that he will not sell liquors on the sabbath-day. and shall also take an oath to observe and not violate the ordinances of said town; and for a violation of any of said ordinances, the party guilty thereof shall be liable to pay such fines as may be assessed by said mayor or any three members of council.” Acts of 1872, p. 266. Under these charter provisions, the mayor and council establh-hed bj7 ordinance a fee of $175.00 for a license to retail spirituous liquors; and on the 5th of January, 1878, the plaintiffs in error paid the fee, gave the required bond, took the prescribed oath, and procured a license to retail for twelve months from that date. There is no dispute that they thus became entitled to retail within the town, and that they entered into business accordingly. Shortly afterwards, new incumbents were installed in the mayoralty and council, and the former board' retired. The new board, of which the defendants were members, passed an ordinance in the following terms, and caused it to be enforced : “ Be it ordained that during the continuance of divine service at any time hereafter to be held by any denomination of Christian people within the corporate limits of Stone Mountain, the doors of all houses or rooms where intoxicating liquors are sold by íetail shall be closed ; and if any person sell or cause or permit to be sold, or in any manner furnish any intoxicating liquors, spirits, wines, or other intoxicating drinks during the time appropriated to such worship, he shall pay a fine of fifty dollars upon conviction for each offense. And it is further ordained that this prohibition shall cover the entire time appointed for such divine worship, from its commencement to its final close, that is, — 196 — it covers not only the time in which such services are being actually performed, but on all protracted occasions, it covers intermissions by day and night.” At the trial of the present case in the court below, tbe presiding judge charged the jury that the mayor and council had power, by virtue of the charter, to pass and enforce this ordinance. The jury were thus constrained to find against the plaintiffs on one of the main branches of the controversy. a. The chartered power in respect to license is to grant or withhold, and the duration of the grant cannot be less than twelve months. Does the power to grant or withhold include or imply the power to grant, and after granting, to forbid the use for some indefinite or uncertain part of the twelve months, both by day and by night? Nothing is more manifest than that the validity of the ordinance cannot be made to rest on this provision of the charter. b. The general police powers conferred by the charter are, however, very broad and comprehensive. May the ordinance stand upon them ? Mark that the divine service or worship which the ordinance embraces is not confined to public service or worship in a church, meeting-house, or other defined or described place' or places, but that the ordinance comprehends worship conducted anywhere in the town. By charter the area of the town is a circle having a radius of l'OOO yards, and, of course, a .diameter of 2000. Any denomination of Christians might assemble on any part of this area, at any time, by day or night, and when their services of devotion began the business of the plaintiffs had to be suspended and remain suspended until the services were over. The worshippers might take rests or intervals in their spiritual exercise, and during these, might return to their avocations and prosecute them, but the plaintiffs’ doors were to remain closed until the final breaking up. By adjournment from day to day and from night to night, a religious meeting might be protracted indefinitely; and in a time of peculiar zeal and excitement, a few such pro — 197 — tracted meetings by each of the Christian denominations, coming one after another, might exhaust a good part of the year. In neither place nor time does the ordinance lay down any limit. It leaves open the whole territory of the town to become the scene of protracted worship, and every day and every night, and each hour and minute of the day or night, the services may begin, continue or be resumed. And the Christians, not of the town otdy, the county, the state, the Union, the continent, but of the whole earth, are allowed at their pleasure to close the plaintiffs’ doors and arrest their business on the sole condition of holding divine service somewhere, anywhere, in the town. The will of Christendom is thus made the arbiter of the plaintiffs’ traffic, and the corporate will of the mayor and council determines nothing but the duty of submitting, and the penalty of disobedience. To compare this ordinance to one which 'requires retail establishments to be closed at a specified hour in the night (10 Ga., 532), is like comparing an indefinite tract-of forest to some certain, well-known tree in a city park. For the authorities of an incorporated town to license a business, and then by ordinance to expose it to indefinite suspension at the will of any and every assembly of Christians who may choose to engage in exercises of devotion anywhere within the corporate limits, seems to me unreasonable as a police measure, or in any other aspect. o. But were it competent for the mayor and council to set up indirectly any will other than that of the corporation to regulate the time of closing and re-opening the plaintiffs’ doors, and could they select for that purpose the devotional will of worshipping assemblies, it is contrary to the spirit and genius of our law to discriminate for or against any particular religion, faith or creed. There can be no monopoly of any privilege connected with worship or the protection of worship. If profane doors must close for one faith, they must for every faith. To readers of the constitution and the Code of Georgia, such a phrase as “any denomination of Christian people,” is unfamiliar as a legal — 198 — expression, and tire reason is, that the state treats all religions alike. I will cite some examples from the Code : Buildings used for “public worship” exempt from taxation. §798, p. 4. “Church” may be incorporated. §1677. Conveyances to or for use of any “church or religions society” for the purpose of erecting “churches or meetinghouses,” good and valid. §2343. Trustees subject to the authority of the “church or religious society” for which they hold in trust. §2344. Provisions for “religious” instruction or worship, proper matter of charity for equitable jurisdiction. §3157, p. 3. Nothing “religious” if licentious in tendency, or inconsistent with the peace and safety of the state. §3159. Every “church or religions society” authorized to fill up vacancies in its trust board. §2345. All criminal laws in force March 5th, 1856, for the protection of “religions societies,” extended to all societies by whatsoever name called. §2346. Selling, or causing to be sold, any spirituous or intoxicating liquors, within one mile of any “chuicli or meeting-house,” or other place set apart or being used for “divine service,” during the time appropriated to such worship (unless the same be within an incorporated city or town), declared a misdemeanor. §4575. Vending or exposing to sale anything whatever within one mile of a camp-ground, during a period of “divine worship,” without written consent, made penal. §4576. Policemen may be appointed for any incorporated “church or campground,” whose duty it is to arrest disturbers of the congregation assembled for “religious worship.” §4577. Bathing on the sabbath day in view of any route to or from any “house of religious worship,” declared a misdemeanor. §4581. The religious attitude of Georgia is that of a friend to religion generally, with no faith or creed of her own, and no preference for one over another. Iler laws protect all equally and impartially, and she has conferred no authority on any local board or other body of magistracy to legislate in behalf of the “denominations of Christian people” and leave all others out. There is no “state” religion, and there cannot be a “town” religion. — 199 — 2. In the bond which the plaintiffs gave when they obtained their license, they undertook to “abide and keep all ordinances of the present mayor and council and their successors in office, regulating the retail of spirituous liquors, and save harmless the present retiring mayor and council from any damages or responsibility that may grow out of issuing said license.” The court, in charging the jury, treated this bond as estopping the plaintiffs from any recovery in their action. The previous instructions had already killed the case, and this slew the slain. The proper construction of “all ordinances” is, all legal ordinances— all that could be legally enacted. An ordinance which is ultra vires, or for any other reason void, is no ordinance at all. It is no more than blank paper. If a person contracts to obey all statutes passed by the legislature, must he therefore obey an unconstitutional act? Surely not. The charge was erroneous, and there should be a new trial. Judgment reversed.