186 Ga. 599 | Ga. | 1938
After an examination of the grounds of the petition for certiorari, the Supreme Court decided to grant the application and review the judgment of the Court of Appeals. Gaissert was convicted of a misdemeanor in selling malt liquors in Coweta,County without a permit or a license. Since the writ was granted the members of the court have made a careful investigation and review of the law applicable to the questions involved; and the court has reached the conclusion, upon mature consideration, that the Court of Appeals erred in affirming the judgment of the city court of Newnan sustaining the conviction. In the first place, the ruling by the Court of Appeals that the selling of malt beverages is a privilege and not a right, while stating a sound principle of law, is not applicable in the case at bar. The case is not one where a person demanded from the county commissioners a permit which they refused, or where, after the county authorities refused to grant a permit, he proceeded to conduct business in the county. It is a case where a duly authorized agent of the Griffin Wholesale Grocery Company, which was already the holder of a license to sell beer by wholesale, took orders in Coweta County for beer to be delivered to a licensed dealer after the placing of the order.
Under sec. 15A of the malt-beverage act of 1935 (Ga. L. 1935, pp. 73-81), “The privilege of manufacturing, distributing, and selling by -wholesale or retail of beverages provided in this act is purely a privilege, and no business legalized by this act shall be
The license fee of $100 demanded of the traveling salesman in this case can not be said to be a regulatory tax. On the contrary, license fees exacted of one whose actual place of business is located within the borders of the county, whether wholesale or retail, may reasonably be classed as regulatory. Since no authority or power is conferred by the act of 1935 on county authorities to exact a license fee (in any county) of a traveling salesman for a duly licensed wholesaler whose place of business is located outside of the county, a conviction for not obtaining a permit, which could be obtained only upon payment of a $100 license fee, can not be sustained. It seems clear that under the principles announced in Fruit Co. v. Dalton, 184 Ga. 277 (191 S. E. 130), the decision of the Court of Appeals is in direct conflict with the rulings of this court. In the case cited it was held: “1. Under the Code, § 92-4105, a municipal corporation can not levy any license or tax against a traveling salesman engaged in taking orders for the sale of goods, where no delivery of goods is made at the time of taking such orders. 2. The protection given by this statute to traveling salesmen extends to merchants and dealers represented by them, and prevents the municipality from levying any tax against a dealer the situs of whose business is elsewhere, and who merely delivers goods to customers in the municipality upon orders previously taken by the salesman. 3. Where a dealer in beer at wholesale had its only office and business in the City of Rome, and sold and delivered beer in the City of Dalton only upon orders previously taken by its traveling agent or salesman, the business so conducted was not subject to an ordinance of the City of Dalton
Judgment reversed.