Union & Mechanics Club v. City of Atlanta

Evans, P. J. (After stating the foregoing facts.) The general prohibition act not only makes it a misdemeanor to sell and barter, either directly or indirectly, intoxicating liquors, but also makes it a misdemeanor for a person to keep such liquors at any public place or at his place of business. Penal Code (1910), § 426. The tax ,act of 1909 imposed a specific tax of $500 “upon every social or fraternal club, corporation, association, or organization of any kind of persons who shall keep or permit to be kept in any room or place (or any place connected therewith directly or indirectly) in which the members of such club, corporation, organization, or association assemble or frequent, any intoxicating liquors, or spirituous or malt liquors of any kind; . . Provided, that nothing in this section shall be construed to license or permit the keeping of any intoxicating, spirituous, or malt liquors in an¡r ¡olace now prohibited by law, or which may hereafter be so prohibited.” Civil Code (1910), § 933. In the tax act the legislature was dealing with social or fraternal clubs, associations organized not for the purpose of trade and profit or for carrying on a business. The proviso in the act distinctly disclaims any intention to depart from the general policy of the prohibition act. Under the doctrine of noscitur a sociis, all organizations or clubs which permit lockers for the storing of intoxicating liquors must be of a social or fraternal character. The legislative conception of a fraternal club is one organized for the entertainment and comfort of its members — a definite organization with a continuing existence, in contradistinction to an ephemeral gathering for a particular occasion, with no idea of permanency in the fellowship and association of its constituency. The club contemplated is a voluntary association of individuals organized for fraternal and social purposes, and not for gain, and provided with a place of rendezvous for its members. The proviso of the tax act is in effect a legislative construction of the prohibition act that the habitat of a social or fraternal club is not to be regarded as a public place or a place of -business, since it is declared in the tax act that the placing of a tax on clubs of this kind shall not be construed to license or permit the keep [725] ing of intoxicating- liquors in any place prohibited by law. It was within the sphere of legislative action to define the meaning of a public place and place of business, and to classify the place or location of a social or fraternal club, where the members are accustomed to- frequent, as not being comprehended within the terms '“public place” or “place of business,” and the legislature exercised its power of classification by putting a tax on social clubs. Miller v. Shropshire, 124 Ga. 829 (53 S. E. 335). A place of business, as used in the prohibition act, is a place where a calling for the purpose of gain or profit is conducted. Not only was' it made penal to give away liquors to induce trade at any place of. business, but the general prohibition act also made it a criminal offense to “manufacture or keep on hand at their place of business” any such liquor. Therefore the specific tax laid by the State-upon social and fraternal clubs was imposed, not as a tax upon any business or occupation, but in the exercise of its police power in regulating the storage and use of intoxicating liquors. The exaction of a tax on locker clubs is not a permission to such clubs to do a blind-tiger business or to evade the liquor laws prohibiting the sale of intoxicating liquor. Sales of intoxicating or malt or other drinks which if drunk to excess will produce intoxication can not be legally made at such clubs, since such sales are denounced as criminal by the general prohibition act. The authority to store intoxicating liquor in the club-room for the use of club members does not embrace permission to sell it or to use it in any way prohibited by law. The charter of the City of Atlanta contains a general welfare clause of very ample powers. Under the welfare clause the city may establish suitable ordinances for administering the government of the city, the maintenance of peace and order, the preservation of the health of its inhabitants, and for the performance of the general duties required of it in its charter. Where the State has established its policy to regulate under the police powers particular conditions, it is within the power of a municipal corporation, under its general welfare clause, to establish any reasonable ordinance designed to enforce .this general policy. The-State lav .prohibits-a dealer from pursuing his ordinary, calling.-upon the Sabbath day, and it was held that it was competent..'fox’, the- City of Atlanta by ordinance to compel all dealers tu keep the doors of [726] their houses of business shut on the Sabbath clay; the design of the ordinance tending to prevent the violation of the State law, as well as preserving the public respect for the Lord’s day. Karwisch v. Atlanta, 44 Ga. 204. Where the sale of liquor was forbidden in a county in which a municipality was situated, it was held to be within the police power, under the general welfare clause, to inhibit the keeping of intoxicating liquors for illegal sale, and the keeping of places to conduct such sale. Bagwell v. Town of Lawrenceville, 94 Ga. 654 (21 S. E. 903); Reese v. City of Newnan, 120 Ga. 198 (47 S. E. 560); Tucker v. City of Moultrie, 122 Ga. 160 (50 S. E. 61). While the city may, under its general welfare clause, establish ordinances intended to aid in the regulation of those matters included in the police power as manifested ■by the general policy of the State in the trend of its legislation, yet a city can not, solely in the exercise of its police power, impose a tax for revenue, and a license when imposed for revenue is not a police regulation and can only''be upheld under the power of taxation. The city has no power to impose a tax upon a locker club as a business or avocation tax; because a social club authorized to keep intoxicating liquor on storage is not conducting a business within the purview of the general taxing act. The legislature may confer upon a municipality the power to collect a license tax, but, in the absence of such express authority, the city can not by ordinance require of a social or fraternal club the payment of a license tax as a permit or condition precedent to the exercise of •the privileges of a social club. Walker v. McNelly, 121 Ga. 114 (48 S. E. 718). While the ordinance requiring a license or permit of a social club contains some regulatory features, these are so inseparably connected with the provision for obtaining a license that they become incidental to the main purpose of the ordinance, which is to require a license tax as a condition precedent to the opening and maintaining of a social club. As we have pointed out, the City of Atlanta has no express charter power to require a license tax of a social club as a condition precedent to its keeping on hand intoxicating liquors, and such power is not to be implied under the general welfare clause. Treating the ordinance as one-requiring a license tax from a social club as a permit or prerequisite to its keeping on hand intoxicating liquors, it is ultra vires and void. [727] It is not to be understood, however, that the city is without authority to adopt a reasonable ordinance regulative of social clubs under the police power contained in its general welfare clause. The policy of the State, as disclosed in the general prqhibition act,, is to prevent the sale of intoxicating liquor and the keeping of intoxicating liquor at a public place or at a place of business; and in aid of that policy the city may establish reasonable rules and regulations tending to enforce that general policy by regulating such clubs só as to prevent all but bona Me social clubs (such as are properly licensed by the State) from keeping or permitting to be kept any intoxicating liquors in their club-rooms. But as the ordinance in question imposes a privilege tax which the city has no right to exact, and makes the payment of the tax a condition precedent to the issuance of a license, the city should be enjoined from forcing the closing of the club-room under penalty of a prosecution under the void ordinance. Judgment reversed. Bede, J., absent. The other Justices concur.