109 Ga. 491 | Ga. | 1900
The plaintiff in error, on May 29, 1891, was tried before the police court of the City of Savannah for the following offense: 1st. “ Violating city ordinance, having her place of business, a barroom, open on Sunday, April 19,1891.” 2d. “Violating 2d section ordinance passed February 25, 1891, by selling liquor on Sunday, April 19, 1891.” On May 25, 1891, this trial was concluded, and the police court entered the following judgment: “ Fined one hundred dollars, or thirty days imprisonment, for violating section second of ordinance passed in council February 25, 1891, by selling liquor on Sunday, April 19, 1891.” An appeal was entered from this decision of the mayor, who presided in the police court, to the Mayor and
The prosecution in this case relied upon the case of Hood v. Von Glahn, 88 Ga. 405. We do not think that decision is in point. It appears there that the plaintiff in error was the keeper of a barroom, and a retail liquor-dealer, and he was tried before the recorder’s court of Augusta on the charge of “keeping open his bar on Sunday, July 19, 1891.” The ordinance of that city, it is true, contained a provision against retailing, selling, or furnishing liquor to any person on Sunday; but it likewise contained the further provision that they should not open, or have or keep open, the doors or windows of their retail shops. The defendant was tried and convicted for a violation of the last provision mentioned. The only question before this court then was, whether or not that portion of the ordinance against keeping open such tippling-shops was authorized by the act of December 22, 1857. That is an entirely distinct offense from selling liquors. Keeping open a tippling-house on the Sabbath day is made penal under a separate and distinct section of the code. Code of 1882, §4535; Penal Code, § 390. This question, therefore, as to whether or not a barkeeper engaged in his regular vocation of selling from his barroom liquor on Sunday was amenable to a municipal court for such a violation of a State law against pursuing one’s ordinary vocation on the Sabbath, was not made in that case; the only question being whether, under the act of 1857, the City Council of Augusta could try him for violating an ordinance passed in pursuance of that act, which authorized specifically that council to pass all ordinances in relation to keeping open tippling-houses on the Sabbath day. The case of Hill v. Dalton, 72 Ga. 314, is also relied upon by the prosecution
We do not mean to say that the second section of the city ordinance in question should be treated as absolutely a void enactment. That portion of the ordinance simply provided generally against the sale of any spirituous or intoxicating liquors of any character on Sunday. If a person who committed such an act was not one whose business or ordinary calling involved the work of retailing spirituous or intoxicating liquors, the principle herein decided would not apply to his case. In the present case, however, it appears from the record that if
Judgment reversed.