14 Ga. App. 121 | Ga. Ct. App. | 1914
The plaintiff in error was jointly indicted with three others for selling intoxicating liquor to one Register, and excepts to a judgment overruling his motion for a new trial. The evidence shows that the accused was the manager of a social club in the city of Valdosta, which had paid the tax required by. section 17 of the general tax act of 1909, and registered with the ordinary of the county as required by the provisions of that act. The club was conducted in connection with and as a part of a fraternal order, called the Valdosta Nest 1461 of the Order of Owls. The Order of Owls is a secret order having a constitution and by-laws, together with a ritual, and the local lodge is a voluntary association of persons and a subordinate branch of the order. The purpose of the organization is the advancement of its members Socially, morally, intellectually, and otherwise. The local “nest” was duly organized in 1911. Its membership is limited to certain described persons, and the members are received and elected in substantially the same manner in which members are received and elected into the usual fraternal orders. In the early part of 1912 the lodge authorized the installation of a buffet, to be run in connection with the club, and circular letters were sent out to the members, requesting those who wished to enjoy the privileges of the buffet to subscribe $5, to form an amount with which to purchase a stock of intoxicating liquors. One hundred and twenty dollars was subscribed, and with this amount a stock of intoxicating liquors'was purchased. Only those members who subscribed to this fund and their guests were allowed the privilege of the buffet. The scheme adopted was to sell to the members a book of coupons which could be exchanged for liquor corresponding in value to the coupons. In exchange for these coupons, liquors were dispensed either by the drink or in bulk. The liquor thus received from the common stock might be consumed in the club-rooms or disposed of in such other way as the members saw ñt. The $120 subscribed as above stated was used for the purchase of the initial stock, which was replenished from time to time with funds paid for the coupon books which were received in exchange for the liquors. Register was not a member of the club, but was introduced and registered by a member as 'a guest, in accordance with the rules and regulations of the club. On the occasion referred to in the indictment Register was accompanied by a member to the club-rooms, where a coupon book was obtained by
The decided weight of authority (at least numerically) is, however, against the view announced in the decisions above cited. See State v. Minnesota Club, 106 Minn. 515 (119 N. W. 494, 20 L. R. A. (N. S.) 1101); Manning v. Canon City, 45 Colo. 571 (101 Pac. 978, 23 L. R. A. (N. S.) 192); State v. Kapicsky, 105 Me. 127 (73 Atl. 830, 23 L. R. A. 737); South Shore Country Club v. People, 228 Ill. 75 (81 N. E. 805, 119 Am. St. E. 417, 10 Ann. Cas. 383); State v. Easton Social Club, 73 Md. 97 (20
In the present'case the trial judge submitted to the jury the determination of the question whether or not the local order of which the accused was manager was a bona fide social club. In overruling the motion for a new trial he was upon further reflection convinced that he was more favorable to the defendant than the law authorized. We fully agree with the trial judge in this view of the law. It may be conceded that the evidence demanded a finding that the local “nest” of the Order of Owls was a bona fide fraternal and social organization, formed for the purpose of promoting the social and intellectual welfare of its members; but this makes no difference. Any of its members who engaged in the sale of liquors are as amenable to the law as if one of them had, while in the club-rooms, committed murder Or larceny or any other criminal offense. Nor does it make any difference that no profit was received from the sale of the liquor to Register. Sales are frequently made át a loss, and profit has never been regarded as an essential element of a sale. “A sale is the transmutation of property from one man to another in consideration of some price and recompense in value.” 2 Bl. Com. 446. “It is a transfer of the absolute or general property in a thing for a price in money.” •Benj. Sales, § 1. “A sale is the passing of the title and possession of any property for moftey which, the buyer pays or promises to pay.” 7 Words & Phrases Judicially Defined, 6291, 6292. In 1 Mechem on Sales, § 1, is the following: “The essential elements here involved are that there must be (1) a transfer of (2) the general or absolute title to (3) a specific chattel, for (4) a price in money or a consideration in money. Sale is pre-eminently the transfer of the title.” Again: “Sale means, moreover, the transfer of the absolute or general title. There may be other transfers of limited interests, such as the right of possession of some specific property in or lien upon the goods; but these, as will be seen, do not constitute a sale.”
If, however, the hundred persons should order a barrel of whisky for their joint use, and upon its arrival should agree upon its distribution in different quantities, each man paying, for the portion which he received, an equitable part of the whole cost, the transaction would be lawful, and there would be no sale. We may go one step further and say that it would not be a violation of law to employ a man to make the distribution and pay him for the services thus rendered; provided, of course, all this was done in good faith, and merely for the purpose of facilitating an equitable
We do not mean to say whisky may not be lawfully purchased by two or more persons in common, nor that it may not be held and used in this manner. But, as stated-above, unless there is an agreement in advance as to the quantity which each is to receive, and the exact interest in the common stock which each is to have, there can be no escape from the conclusion that one who pays money and receives a portion of the liquor would be making a purchase from all having an interest in the common stock. We are not called upon, nor do we feel that it would be proper for us to undertake, to suggest a plan which would not be obnoxious to the law. The law is plain, and those who wish to avoid the consequences of its violation must adopt a plan which comes within the law. In seeking a plan which is within the letter of the law, it is well also to keep in mind its spirit.
The great object of the prohibition law is to lessen as far as possible the consumption of intoxicating liquors'. This was the
It is argued that at the time the general prohibitory law was passed it was a well-known fact that numerous social clubs were in operation in certain parts of the State, in which intoxicating liquors were dispensed to the members and their guests; that the method of dispensation was practically the same in all of these clubs; and that the General Assembly must have been advised both as to the existence of these organizations and as to the methods employed by them for the purpose of dispensing intoxicating liquors. From this counsel deduce that when, almost immediately after the passage of the general prohibitory act, the General Assembly imposed a tax "upon every club, corporation, and association of persons” keeping on hand intoxicating liquors for the use of its members, and when in 1909 the tax was reimposed "upon every social or fraternal club, or corporation, association, or organization of any- kind of persons,” it must necessarily have intended to refer to the social clubs which were then and had been in operation in the State for many years; and must have intended to sanction the method employed by them for dispensing the liquor. Some such argument as this seems to have met with approval in the ease of Klein v. Livingston Club, supra, and in State v. Duke, 104 Tex. 355 (137 S. W. 654, 661, 138 S. W. 385). In the former ease, referring to the statute under construction, it was said: “The plain implication is that the consumption of liquors in clubs as known to the legislature was not deemed a sale.” If this argument could be accepted, the effect of the imposition of a tax upon social clubs would