5 Ga. App. 36 | Ga. Ct. App. | 1908
Fowler brought suit for $5,000, damages, against the Rome Dispensary, J. Gr. Pollock, D. E. Lowry, Frank Freeman, and Charles Shiflett, for selling a pint of whisky, without his permission, to his son, who is a minor. Pollock, Lowry, and Freeman were alleged to be the dispensary commissioners, and Shiflett the manager of the dispensary. The 6th paragraph of the petition alleges, that the Rome dispensary, by its commissioners and manager, and their servants and agents, whose names are unknown, acting under the charge of said commissioners and manager, and for them and for said Rome Dispensary, and acting within the scope of their employment, did sell and furnish petitioner’s minor son, for his own use and without the permission of petitioner, one pint of corn whisky. The petition then proceeds to allege, that the son drank part of the liquor and thereafter boarded a railroad train and became beastly drunk, and ran every person out of the'
To this petition the defendants demurred generally; and they demurred specially to the 6th paragraph, upon the ground, that the name of the person who actually made the sale is not set out, and that it is not stated what connection any of the defendants had with the sale. They also demurred specially upon the ground that the sale of the liquor to the petitioner’s son was not the proximate cause of his conduct and of the results thereof. The court sustained the demurrer. So far as the record discloses, no amendment was offered by the plaintiff, setting forth the name of the person who actually made the sale to his son.
We think the court properly sustained the demurrer and dismissed the petition. Without determining whether, under the terms of the act creating the Rome dispensary (Acts of 1901, p. 620), it was the- intention of the legislature to create such a corporation as could sue and be sued, and, therefore, whether the demurrer was properly sustainable as to it, under the rulings in
In no event was the Eome dispensary suable. The Supreme Court held, in construing the particular act which created this dispensary (Barker v. State, 118 Ga. 39, (44 S. E. 876)), that “The dispensary is a State institution. No private individual has any direct interest in its operation. The dispensary was established in furtherance of temperance, and in certain localities it has been thought better to sell intoxicating liquors under direct governmental supervision than to undertake to prevent the sale altogether or to allow it by private individuals. . . Dispensaries are governmental agencies designed to curtail the consumption of intoxicating liquors. This was the nature and purpose of the local act for Floyd county.” It had previously decided the same thing in Plumb v. Christie, 103 Ga. 686 (30 S. E. 759, 42 L. R. A. 733), Dispensary Commissioners v. Thornton, 106 Ga. 106 (31 S. E. 733), and Butler v. Merritt, 113 Ga. 238 (38 S. E. 751). In Plumb v. Christie, supra, Justice Lewis, delivering the opinion of the court, says (p. 695) : “There is no private corporation created by the act, and no irrevocable grant of a privilege to any one. On the contrary, the act prohibits any one from engaging on their individual account in this business; the government itself.takes charge of it and undertakes to control the traffic through the instrumentality of its public officials.” In the Thornton case, supra, the same judge, in a headnote, declared it to be the opinion of the court that “the dispensary commissioners . are governmental officials.” In the body of the opinion the court says: “It follows from the decision in the ease of Plumb v. Christie, 103 Ga. 686, that the dispensary commissioners of Terrell county, under the dispensary act for that county, approved December 10, 1897, . . are mere governmental agents or officials, not only empowered but required by the legislature of the State, to establish, under certain rules and conditions, dispensaries for the sale of liquors in that county; that this body is not a private corporation, and that these dispensaries are in no sense private institutions, but they are public institutions of the government.” In Butler v. Merritt, supra, the qualified voters of Mitchell county had adopted the local-option act, which provided that it should not be legal for “any person” within the limits of the county to sell intoxicating liquors; but, notwithstanding
The words “any person,” in the local-option act, are the same words employed in §3871 of the Civil Code, and seem to us to be used in the same sense. We-conclude, therefore, that there is no-civil liability upon the part of the Rome dispensary, or upon the officers designated by the act creating it; in their official capacity, nor any liability upon these officials for the illegal acts of their subordinates, unless done with their knowledge, permission, and consent. Neither the State nor any of its subordinates or agencies is bound by the passage of a law, unless named therein, or unless the words of the act are so plain and unmistakable as to remove any doubt as to the intention of the legislature. Russell v. Men of Devon, 2 Term R. 666; Scales v. Ordinary, 41 Ga. 225. Where there is doubt it will be resolved in favor of the public. Lingo v. Harris, 73 Ga. 30; U. S. v. Herron, 20 Wall. (87 U. S.) 251 (22 L. ed. 275); Lewis v. U. S., 92 U. S., 618 (23 L. ed. 513). Furthermore, the act now in question, in its sixth section, specifically prohibits the sale of liquor to minors by its manager or by any one else, and such a sale, for that reason, would be am act ultra vires, for which the dispensary could not be held liable,, even, if it could be sued. The commissioners and the manager, course, would each be liable for any sale made by himself to a minor; but as commissioners or as manager none of them would be liable, under the rulings in Plumb v. Christie, and Thornton v. Dispensary, for a sale made by an employee. Any commissioner, or the manager, might be criminally liable for any sale to a minor, of which he had knowledge and which he permitted, but, under-the terms of the act creating the officers of the Rome dispensary,, the subordinate officers or employees are the employees of the dispensary as an institution, and not of the commissioners or of the manager.
For these reasons we are clear that the court properly sustained the demurrer and dismissed the petition. Judgment affirmed.