6 Ga. App. 532 | Ga. Ct. App. | 1909
The plaintiff in error was tried in the mayor's court of Fitzgerald for the violation of an ordinance forbidding the keeping on hand of intoxicating liquors for sale. He filed a plea in abatement, setting up that the city had no authority to pass the ordinance in question, for the reason that the section of the act incorporating the City of Fitzgerald does not authorize the mayor and council to penalize the keeping of intoxicating liquor on hand for illegal sale, but, on the contrary, authorizes the municipality to provide an ordinance for furnishing such liquors. The original act of the General Assembly, as enrolled and kept of file in the office of the secretary of State, of course controls, where there is doubt as to the word used by the legislature; but our examination of the enrolled act shows that, strangely enough, the same error obtains in the act as enrolled as is manifest in the charter as printed (Acts 1907, sec. -64, p. 635). The plea in abatement, however, is without merit, because the point could not properly be raised thereby, and the mayor properly overruled it. A plea in abatement can not be used to attack the validity of a law under which a defendant is being tried, and serve the office of a demurrer.
Furthermore, the mayor was right in overruling the plea in abatement because, even if the ordinance could not rest on section 64, and even if, prior to the passage of the prohibition act of 1907 (Acts 1907, p. 81), the council could have provided for the furnishing of