7 Ga. App. 852 | Ga. Ct. App. | 1910
Sims was convicted in the city court of LaGrange, on an accusation charging him with a misdemeanor, “for that . . on the 1st day of January, 1910, in the city of West Point, Georgia, a city of less-than twenty-five hundred inhabitants according to the last census report of the Hnited States, [he] did then and there unlawfully sell and offer for sale in quantities of less than live gallons, one bottle of Cook’s Malt Ale, a “near beer,” a beverage made in imitation of and intended as a substitute for beer, ale, and malt liquors, without first having obtained and paying for a license so to do for the year 1910, from the ordinary of Troup county, Ga.” A demurrer was filed to this accusation on the ground that there was no offense charged under the law of this. State.
There are three modes in which. a law or statute can be repealed, viz.: expressly, by necessary implication, or, where the later of two acts covers the subject-matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a sub
It is well settled, not onfy by the Supreme Court of this State, _ but by all the authorities on the subject, both courts and text-writers, that repeals by implication are not favored, and will never be declared by the courts to exist, except where the latter act is clearly and indubitably contradictory of and repugnant to the former act, and the contradiction and repugnancy are such that the two acts can not be reconciled. As well expressed by Mr. Black
Applying these general principles, which are well established, to the two acts in question, we think the conclusion is irresistible that the legislature did not intend that the act of 1909 relating to the manufacture and sale of “near beer” should repeal the act of 1908 on the same subject, but only intended by the act of 1909 to restrict the right of sale under license, given by the act of 1908; that the tA?o acts in this respect are not repugnant or irreconcilable, and both can stand together, harmoniously accomplishing the purpose of the legislature in both acts, and especially the purpose of the legislature in the later act. And we conclude that under these two statutes it is noAV a misdemeanor in this State to sell what is known as “near beer,” or a beverage described in these two acts, with or without license, except in cities of 2500 inhabitants or more, to be determined by the last census of the United States. We do not
The plaintiff in error attacks the constitutionality of both the act of 1908 and the act of 1909, relating to the sale of “near beer;” but as these exceptions are not made definitely or specifically, or in proper form for certification to the Supreme Court, this court declines to certify them. Judgment affirmed.
RULES AMENDED.
Rule 3. Supreme Court Attorneys, how admitted. Any member of the bar of the Supreme Court of this State shall be admitted to practice in this court upon submitting satisfactory evidence that he has been admitted to practice in the Supreme Court, and upon his taking the oath prescribed above and signing the Roll Book; whereupon the clerk of this court shall issue to him a license under the seal of this court, upon his paying the fee prescribed in Rule 1 of this court.
Rule 5. Argument. Argument is limited in misdemeanors and in eases originating in municipal courts, justice’s courts, or county courts, and in cases from city courts where the amount involved does not exceed $500, to thirty minutes on each side, and in all other cases to one hour on each side, unless by special leave an extension of time is granted by the court on specific application made before the argument of the case is begun. Save when section 5581 of the Code applies, only two counsel on each side will be heard. The plaintiff in error opens and concludes; and' on motions the movant' has the like privilege. The reading from authorities cited on the brief, while not absolutely prohibited, is usually unnecessary and is therefore discouraged.
Rule 29. Motion for rehearing, when and how made. No motion for a rehearing will be considered by this court unless the same is filed with its clerk in duplicate (the original and a carbon copy being sufficient) during the term at which the judgment sought to be reviewed was rendered, and before the remittitur in the case to which said motion relates has been forwarded to the clerk of the trial court. A rehearing will be granted, on motion of the losing party, only when it appears that the court has overlooked a material fact in the record, a statute, or a decision which is controlling as authority and1 which would require a different judgment from that rendered. No motion for a rehearing will be entertained which does not expressly point out what material fact in the record, or controlling- statute or decision, has been overlooked by the court. There shall be attached to the motion a certificate of counsel that upon careful examination of the opinion of the court he believes such a fact, statute, or decision, has been overlooked.