Daus v. Mayor Council of Macon

Simmons, C. J. Daus was tried and convicted before the recorder of the City of Macon for the violation of an ordinance of that city. He sued out a writ of certiorari to the superior court. At the hearing, the judge overruled the certiorari and affirmed [777] the decision of the recorder. The assignments of error made in the petition for certiorari will be found in the official report. 1. The charter of the City of Macon gives the mayor and council the sole and exclusive right to grant licenses to retail liquors in that city, to fix the rates of such licenses and the terms upon which they shall be issued. It also gives them the authority “to’ levy and collect a license-tax . . upon all persons exercising any profession, trade or calling in said city, when not prohibited from so doing by the constitution and laws of this State; to compel the payment of the same; to make all suitable laws and regulations necessary and proper'to carry out the powers herein conferred, and to prescribe suitable penalties for the violation thereof.” In pursuance of the power thus conferred, the mayor and council passed ordinances requiring each person who sold spirituous or vinous liquors, not including beer, in quantities of one quart and not more than 4J gallons, not to include any other line of business, to pay, in addition to any other license, $150.00; and requiring dealers under this section dealing in beer to pay $50 additional. Daus took out a license for selling spirituous and vinous liquors under the above ordinance, but refused to take out a license for selling beer. He sold beer in quantities of one quart to 4 J gallons, and claimed that he was authorized to do so by the license already taken out, and that he was, therefore, not guilty of violating the ordinance against the sale of beer. He further claimed that the mayor and council were not authorized by the charter of the city to require a license from him for the sale of beer in packages of from one quart to 4J gallons, which packages he had himself put up and which he sold not to be drunk on the premises. The license issued to him by the municipal authorities allowed him to “ carry on the business of quart to four and a half gallons liquors.” He claims that “liquors” includes beer as well as spirituous and vinous liquors. It will be observed that the ordinance under which he received this license, allowing him to sell spirituous and vinous liquors, expressly excepts beer and requires an additional license for the sale of that article. When, therefore, he procured his license, he did so with the knowledge that the law of the city excepted there [778] from the right to sell beer. Although his license was broader in its terms than the ordinance, he can not shield himself under it from the penalty imposed for selling beer without a license. In the case of Macon Sash, Door & Lumber Co. v. Mayor etc. of Macon, 96 Ga. 23, the corporation took out a license to carry on the business of making and selling doors, sashes, etc. Its officers were prosecuted and convicted in the recorder’s court for using wagons and drays without a license which was required by an ordinance other than that under which their business license was issued. They contended, as does Daus here, that their license to carry on their business embraced all the usual and necessary agencies for carrying it on, and that wagons and drays were necessary to the carrying on of the business of the corporation. This court affirmed the conviction, holding, in substance, that the general- license to carry on the business was qualified by the ordinance imposing a coexisting license-tax upon the use of wagons and drays. In the case of Carson v. Mayor etc. of Forsyth, 94 Ga. 617, it appears that Carson had a livery-stable and a sale-stable in the same building; the ordinance of the city of Forsyth required him to take out licenses for both businesses; executions were issued against him to the amount of the license-tax, and he resisted on the ground that the city was taxing him twice for the same business; and this court held that “It can not be ruled as a matter of law that carrying on both a livery-stable business and a sale-stable business is not two occupations but one only.” These cases, we think, dispose of the first point. See also Keely v. City of Atlanta, 69 Ga. 583. We think the second objection is also without merit. The charter of the City of Macon expressly authorizes the mayor and council, as will be seen by reference to the provisions recited in the first headnote, “to levy and collect a license-tax . . upon all persons exercising any profession, trade or calling in said city” and to make suitable laws and regulations for carrying out this power. Under this clause of the charter, the municipal authorities had power to prescribe a license-tax for carrying on the business of selling beer, although the same man may have already taken out a license to sell spirituous [779] and vinous liquors, and although both businesses may have-been carried on in the same establishment. The power exercised by the mayor and council in this case was the power to-levy and collect a business or occupation tax, — a power which is possessed and enforced, so far as we know, by all the cities-of the State. Whether it is wise or unwise, we can not decide • that question is left by the legislature to the mayor and council of the city. The law is thus written, and we see no legal reason why it should not be enforced. 2. It was contended that the clause of the charter which gave the mayor and council power to levy and collect a license-tax upon a business or occupation can not include the business of selling beer and liquors, because the power of the municipal apthorities over the sale and control of liquors was exhaustively dealt with in another section of the charter; that powers in regard to matters which are expressly and specifically dealt-with in one section can not be enlarged by a general provision in another. This argument is possibly sound if the premise on which it is based is true, but this we think is not so. The only section of the charter of the City of Macon which relates expressly to liquors is sec. LXXXIII (Acts of 1893, p. 264). This gives the “sole and exclusive right of granting licenses to retail liquors in said city, and of fixing the rates of such licenses- and the terms upon which they shall be issued,” and also gives the right to license all “barrooms.” It does not, therefore, deal with the question of selling liquors other than by retail or in barrooms. While it may deal fully' with the retail sale of liquors, it certainly does not exhaustively treat the whole subject of selling liquors. The power to tax the sale of beer in wholesale quantities is not conferred by this section, and it can not bring this matter from under the general provisions of ahother section whose terms include it. Judgment affirmed. All the Justices concurring.