*1 503 et al. al. v. LEATHERS MASSELL et 27340. a judgment from Justice. This is Chief Mobley, County restraining Court of Fulton Superior refusing appel- from to issue appellants enjoining lees a beer license.. . . selling "The of . privilege
Code provides: 58-718 provided chap- this beverages or retail of by wholesale privilege [emphasis supplied] no busi- is purely ter this shall be conducted legalized by chápter ness this State without county incorporated municipality or or county of such governing authority hereby given discre- said municipality, which per- or refusal of such granting as to the tionary powers pp. mits.” Ga. L. arising under this questions passed upon
This court has
enactment,
uniformly
times since its
statute several
Holcomb,
v.
In Harbin
The cases relied the appellees support the con- granting tention that of a license to sell malt bever- ages is not a "mere privilege” and must meet *2 requirement of process equal due and protection are not controlling. 605, 326 F2d not controlling cases, on this court. The other Schware Examiners, v. Board of Bar 232, 353 U. S. SC 752, 1 LE2d Verner, 398, Sherbert v. 1790, SC 10 LE2d Shapiro 618, 1322, 394 U. S. 22 LE2d are not in point, they as deal different In situations. case, Schware where the of Bar Board Examiners refused permit Examination, Schware take the Bar practice court held that "whether 'right’ of law is a a 'privilege’ determined; need not be here . . .” case, Sherbert the South abridged Carolina statute rights appellant’s religion. to free exercise of reasons, foregoing For the the trial court was error.
Judgment concur, reversed. All the Justices except Hawes JJ., Gunter, who dissent.
Argued July September 1972 Decided
Rehearing September denied Bowden, Henty L. E. Dougherty, John for appellants. Horn, M. Zell, Albert Glenn for appellees. Justice, dissenting. This appeal has presented
Gunter, an question of whether for a application permit sell beer at may retail Atlanta denied City’s governing authority. applicant’s first summarily denied governing authority; Fulton Superior Court
held such legally denial improper directed that the governing consider authority duly application; evidentiary hearing govern- was then conducted before the ing authority, and the application denied; was again an- other judge of Fulton Superior Court determined that second legally denial was after improper evidentiary enjoined he the governing re- fusing to issue the applicant; governing authority has now appealed, seeking reversal of the trial injunctive court’s order.
A majority of the court here today reverses court, holding that in the area of alcoholic entitlement retail only sales a "privilege” which can be arbitrarily granted or denied local erning authority. I disagree with majority and would hold that the arbitrary denial of by a local governing authority offends the "equal protection” provisions of the Georgia Constitution and the Federal Con- stitution.
Since Magna Carta our system has maintained that all citizens must receive fair equal at treatment the hand of government; to bolster equal concept treatment of *3 citizens at the hand government, of "equal protection” pro- visions have been written into our State Federal Con- stitutions; our Georgia Constitution that says one of the paramount duties of government is the to protection a per- son im- property and his and that protection shall partial and complete. See Code Ann. 2-102. Our Georgia § provides Constitution also that it shall be the duty of the Assembly General to enact such will protect laws as citi- in the full enjoyment rights, privileges zens of the immunities due to such citizenship. See Code Ann. 2-125. § The Fourteenth Amendment to the Federal Constitution enforce, that provides no State shall any make or law which privileges abridge shall or immunities of citizens of the States, United or deny any person jurisdiction its the equal protection of the laws. quite is therefore to me that plain the General Assem-
bly cannot enact a valid Georgia statute which that says a retail arbitrarily beer can be denied to a citizen of by a local and that Georgia governing authority, is exactly to do attempted Assembly Georgia the General what Beverages it the Malt enacted 1 and 15A when §§ 73.) (Ga. 1935, p. L. Act. for a municipal in that Act authority
The to a citizen a retail beer arbitrarily deny ernment to conflict with that direct authorization legislative ais and Federal Georgia provisions that provides also Georgia Constitution Constitutions. Constitution Georgia of the acts in violation legislative void, the ju- are the United States the Constitution 2-402. them. See Code so declare diciary shall the General attempt by therefore declare Malt Act Beverages in the 1935 Georgia Assembly arbitrary power confer is unconstitu- to citizens deny retail beer
grant tional and void. has at rest put the United States Court of Supreme "privileges” heretofore made between distinction In the case of Gold- context. in the constitutional
"rights” 1011, 25 Kelly, 397 U. S. LE2d berg v. challenge can that "the constitutional 287), it said assistance benefits argument answered (citing Shapiro a 'right,”’ and not 'privilege’ are a 618; the case citing approval F2d more than nothing in 1972 is The retail sale of beer outlets; its sale with numerous regulated business general mer- more than other normal little regulated but upholding of this court chandise; and the earlier decisions deny a municipality early are, my relics opinion, citizen qualified era; "equal protec- light and in the post-prohibition Constitutions, Georgia and Federal tion” mandates of *4 peaceful repose. given decisions should now be those under the for citizens The doctrine in Constitutions writing reduced to invoked and law arbitrary action taking bodies governmental prevent their citizens. classes of groups their citizens toward in af- meaning any practical to have For doctrine legislative grant everyday fairs enables the latter to arbitrar- con- to one of its citizens can not be a beer ily deny stitutionally upheld. of the trial judgment
It that I affirm the follows court. that Jus- I am authorized to state respectfully dissent. me in this dissent. joins
tice Hawes 27305. SNEED v. CALDWELL. corpus review of a habeas This seeks
Per curiam. custody to the appellant which remanded of the appellee. allegations respect made four below with appellant The trial con- illegality judge of his confinement. and he concluded three
ducted full were the the current allegations corpus application matter of a habeas subject previous had allegations and those three brought by appellant; ad- in the habeas previous corpus been determined Therefore, held judge to 'the versely appellant. (10) al- Ann. 50-127 those three pursuant to Code prior determined legations, having previously been action, without merit. habeas were corpus raised appellant The fourth had not been allegation complained action. previous corpus his habeas on the issue of convicting to the in the court charge jury the decisions of this court alibi. The trial followed alibi, he held that the charge on respect of due charge process. was not violative convicting court was as follows: charge on alibi of the ac- impossibility "Alibi as a defense involves the time of at the of the offense at the presence cused’s scene in respect of the evidence range its commission and the