126 Ga. 414 | Ga. | 1906
(After stating the facts.)
1. It is a matter of which judicial cognizance may be taken that the territory now embraced within the boundaries of Crisp county was, upon the creation of that county, laid off from the county of Dooly, wherein the sale of liquor was prohibited by law. The act under which the county of Crisp was organized expressly provided that “all local laws and general laws having local application [then] in force within any territory included within the limits of any new county [should] be in full force and effect within such territory included within the limits of such new county; provided that where by the general laws of this State provision is made for any of said laws going into effect in any county by an election to be held, that an election may be held in said new county at any time after its creation for the purpose of putting said local laws into effect, notwithstanding the provision of any general law requiring the lapse of any specified time after the last election on the subject.” Acts of 1905, p. 50, see. 15. In the brief of counsel for the plaintiff in error the contention is made that .“the legislature had no authority to so transfer a local prohibition law or a local option law,” and that the above-quoted provisions of the act of 1905 contravene art. 1, sec. 4, par. 1, of the constitution, declaring that laws of a general nature shall have uniform operation, etc. But as the constitutionality of that act does not appear to have been assailed in the court below, we can not undertake to pass upon the constitutional question thus sought to be raised for the first time in this court. State v. Henderson, 120 Ga. 781 (7). Treating the act of 1905 as valid and operative, in so far as it undertook to-provide that local laws should remain in force over the territory taken from one county for the purpose of creating a new county, it is evident that there could be no legal sale of liquor in Crisp county, after the territory embraced therein was taken from Dooly
2. Under the agreed statement of facts, the defendant did not sell intoxicating liquor in the county of Crisp; the defendant only filled orders transmitted1' to him at his place of business in Sumter county, where he was conducting a barroom under license. It does, not appear from the statement of facts how the liquor was to be transported to the purchaser in Crisp county. Presumably the delivery was to be made at the place where the order was received, which was in Sumter county; for the law will not presume an illegal deliver]», if the contrary presumption may be indulged from the facts. Dunn v. State, 82 Ga. 30. The transaction between the buyer and the seller was over the telephone; the purchaser was in Crisp county and the retailer was in Sumter county. The medium of communication was the telephone, and the telephone company was the agent of the sender of the order (the purchaser) and not the agent of the sendee of the message (the liquor dealer), who, though one of the company’s regular subscribers, did not undertake to procure orders for liquor in Crisp county by using the telephone for the purpose of soliciting orders from persons residing in that county. W. U. Tel Co. v. Shotter, 71 Ga. 760; W. U. Tel. Co. v. Lumber Co., 114 Ga. 576. Had the purchaser made use of the postal service, instead of the means of communication afforded by the telephone company, it could hardly have been insisted that the contract of sale was made in Crisp county, instead of the county of the residence of the seller, where he received and accepted the
Did the defendant in that county “take orders for, or solicit, personally or by agent, the sale of spirituous” or other intoxicating liquors, in violation of the Penal Code, § 428, as amended by the act of 1897? He did not go to the county of Crisp for the purpose of accepting orders from persons who might know he had whiskey to sell in Sumter county, but remained at home. When a customer in Crisp county desired to buy whiskey, he would telephone his order to the defendant in Sumter county. So far as appears, the defendant never in person or by agent solicited any order. He did pay the telephone company for the ’phone established at Coney, in Crisp county, which was used by customers, without cost to them, in transmitting their orders for whiskey; but he did not there have any agent who solicited orders or received any orders which he transmitted by ’phone to the defendant. The case therefore differs very materially from that of Walker v. State, 122 Ga. 747, wherein’the question arose whether a telephone operator really acted as the agent of the seller or of the purchaser in transmitting orders for liquor. The most that can be said is, that the telephone company furnished an instrumentality, for which the defendant paid, enabling his customers to transmit their own orders for whiskey. So far as we are informed, it was lawful for the telephone company to permit the use of its ’phones by the public for the purpose of transmitting orders for liquor, without regard to who paid the required rental; and if so, the defendant did not violate the law when he paid for a ’phone at Coney to be used by the public for this purpose. It is insisted by counsel for the State that by renting this ’phone and placing it at the disposal of the public, the defendant resorted to a bare subterfuge to evade the liquor laws, and held out a constant invitation to the public to transmit him orders for whiskey. It is doubtless true that the business enterprise displayed by the defendant in thus placing himself within easy communication stimulated the transmission of orders for whiskey by his customers, but we can not assent to the assertion of the State’s counsel, that “the telephone furnished and paid for by defendant is the agent of the seller to receive orders for whiskey, just as much so as a man standing in its place would be.” The
Judgment reversed.