141 Ga. 331 | Ga. | 1914
(After stating the foregoing facts.)
There are two classes of forfeitures, disqualifications, or the like. In .one class they are made a part of the penal statute, enter into the trial of the criminal case, and are declared as a part of the sentence pronounced by the court in that case. In the other they do not form any part of the trial or sentence in the criminal case, but the forfeiture or disqualification is declared by the statute itself
There are other laws providing for certain disqualifications, besides those in regard to the sale of liquor or “near beer.” The constitution declares that “No person who, aftér the adoption of this constitution, being a resident of this State, shall have been convicted of fighting a duel in this State, or convicted of sending or accepting a challenge, or convicted of aiding or abetting such duel, shall hold office in this State, unless he shall have been pardoned; and every such person shall also be subject to such punishment as may be prescribed by law.” Civil Code (1910), § 6407. Here is a- provision for the imposition of the ordinary punishment under the penal law, and also for a disqualification arising from a conviction; but it would hardly be contended that the constitutional disqualification would be of no force unless the judge in pronouncing sentence saw fit to incorporate in it such a provision. By the Civil Code (1910), § 35, it is declared that certain classes of persons shall not be permitted to vote. One of these classes includes “Those who shall have been convicted in any court of com
In the statute now under consideration there is no hint of any requirement that either the indictment or accusation or sentence should include any provision in regard to disqualification. Indeed, there is nothing in express terms said about any conviction, but only as to the perpetration of certain acts. But in view of the ex-' pression that under such circumstances the person, “in addition to any penalty which he may otherwise be liable to,” shall forfeit his license and be disqualified from holding another, this court in Cassidy v. Howard, supra, referred to the forfeiture and disqualification as something resulting, in addition to the imposition of the usual penalties, from a conviction. While the expression was used in the opinion that it was an additional .penalty to be imposed upon such person if convicted, this did not mean that it must be imposed by the judge, but by the law. To hold otherwise would require this court to construct by implication a new and additional crime, or element of a crime, not contained in the penal statute, and to authorize the introduction, on the trial of one prosecuted under the Penal Code, of a new issue in addition to the one provided by the penal statute itself; and to do this by the construction of a distinct and separate civil statute. This court has no authority to do any such thing. ■ The real point determined in the Cassidy case was that the statutory provision in regard to abating or enjoining a “blind tiger” did not include the right to declare a forfeiture of the license or a disqualification to hold one.
Without undertaking to give an exact definition of the expression, “under color of the license herein required,” it is .plain that the conduct of the petitioner for the writ of mandamus, which brought about his conviction, was under color of his license within the meaning..of the statute. It was admitted in the agreed state
If the law provides a disqualification for one applying for a license of this character, and its terms are applicable to the present plaintiff in error, it follows as a matter of course that he had no right to compel the ordinary to grant to him such a license, and that there was no error in refusing to grant a mandamus absolute to compel that officer to do so.
It is contended, however, that the license to sell a beverage, drink, or liquor in imitation of or intended as a substitute for beer, ale, wine, whisky, or alcoholic, spirituous, or malt liquors, for which provision is made in the Civil Code (1910), § 1765, should not be analogized to a license to sell intoxicating liquors; and that traffic in such drinks should not be subject to police regulation like the sale of spirituous or malt liquors, but should rather be classified with the ordinary vocations of life which advance human happiness, or with trade and commerce which do not produce or have a tendency to produce immorality, suffering or loss. But if one desires to do the business of selling imitátions of or substitutes for liquor, he must not be surprised if the law deems it necessary to
"While at the time of the passage of the act of 1908 an extensive change was being made in the method of dealing with the penitentiary convicts, and the obtaining of revenue in connection therewith was an important consideration in the passage of that áet, it can. not be denied that it recognized the nature of .the business which was being licensed, and made police regulations and restrictions' in regard to it. The act has since been codified in the Code of 1910 in sections 1763 et seq., and that code has been adopted by the legislature. In it the provision now under consideration appears in section 1769. If there was ever any question as to whether that section might have been objectionable as a part of the original act, it has now been adopted as a part of the code. Central of Georgia Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). In Carswell v. Wright, 133 Ga. 714 (66 S. E. 905), the provision under consideration, which constituted the eighth section of the act, was not held to be unconstitutional; but it was merely said that, even if it were unconstitutional, that would not destroy the entire act.
It has been said that “the fourteenth amendment forbids the States to make or enforce any law which shall ‘abridge the privileges or immunities of citizens of the United States.’ But the right to sell intoxicating liquors is not one of the privileges or immunities here contemplated.” Black on Intoxicating Liquors, § 36. And likewise we do not think that the right to sell things in imitation of or intended as a substitute for spirituous or malt liquors, in a State which prohibits the sale of intoxicating liquors, is one of the privileges or immunities of citizens of the United States which can not be dealt with or abridged under the police power of the State.
Judgment affirmed.