141 Ga. 79 | Ga. | 1913
The prohibition act declares it to be unlawful for any person to sell or barter, or give away to induce trade at any place of business, or to keep or furnish at any public place, or manufacture, or keep on hand at their place of business any alcoholic, spirituous, malt, or intoxicating liquors, or other drinks which if drunk to excess will produce intoxication. Penal Code, § 426. In the tax act of 1909, found in the Civil Code, § 933, a specific tax is imposed upon “every social or fraternal club, or corporation, association, or organization of any persons who shall keep or permit to be kept in any room or place (or in any place connected therewith, directly or indirectly), in which the members of such club, corporation, organization, or association assemble or frequent, any intoxicating liquors or spirituous or malt liquors of any kind: . . Provided, that nothing in this section shall be construed to license or permit the keeping of any intoxicating, spirituous, or malt liquors in any place now prohibited by law, or which may hereafter be so prohibited.” These two provisions of law were construed in relation to each other in Union & Mechanics Club v. Atlanta, 136 Ga. 721 (71 S. E. 1060). In that case it was
In many jurisdictions where the sale of intoxicating liquors is prohibited, or allowed only by license, questions have arisen whether the dispensing of liquor by a club to its members under the facts of each case constituted a sale. If the transaction amounted to a sale, ‘the statute has been held to apply. In the instant case the evidence authorized a finding that the plaintiff in error paid what may be denominated the locker-club tax, and the United States retail liquor dealer’s tax, and sold over its bar intoxicating liquors to persons, some of whom were members and others who “clandestinely” patronized the bar. Even the manager of the club made no pretense that the transaction between him and the members was not a sale, but frankly admitted that he sold intoxicating liquors to members of his club. A sale of intoxicating liquor by the club to its members is just as much a violation of law as would be a sale of such liquors to non-members. The law forbids all persons (with the statutory exception) from selling, directly or indirectly,
The order passed by the court was as follows: “After hearing the evidence and argument, it is considered, ordered, and adjudged that the said Teutonia Club is a nuisance, it being made to appear that the same is a blind tiger where intoxicating liquors are being sold in violation of law; and the said Teutonia Club aforesaid is hereby ordered abated as such, and the said Teutonia Club and the said Tony Cutro, mgr., are hereby restrained and enjoined from the sale of intoxicating liquors, whether spirituous, alcoholic, or malt, on said premises until the further order of this court." So much of the order as restrains the club and its manager from the sale of intoxicating liquors until the further order of the court is supported by the evidence, and was the proper subject-matter of an interlocutory injunction. We think, however, that the order granting a temporary injunction should be modified by striking therefrom the adjudication by the court that the club was a nuisance and abated as such. The object of the litigation is to abate the alleged blind tiger as a nuisance under the statute; but this can not be done except upon a final hearing of the ease. That portion of the order should be stricken, and the order left to remain .as one restraining the defendants from the sale of intoxicating liquors on the premises until the further order of the court.
Judgment affirmed, with direction.