139 Ga. 845 | Ga. | 1913
Several citizens of Chatham county brought a petition under the Civil Code, §§ 5335-7, against the defendants to abate and enjoin the operation in their neighborhood of what is commonly known as a blind tiger, where spirituous, malt, or intoxicating liquors are sold. The jury returned a verdict for the defendants; and the court refused a new trial; whereupon the plaintiffs sued out a bill of exceptions.
The trial court’s construction of the statute was predicated upon certain expressions appearing in the majority opinion in Cannon v. Merry, 116 Ga. 291 (42 S. E. 274), as appears from his opinion overruling the motion for new trial. In that case a dispensary for the sale of intoxicating liquors was being operated under an ordinance of the town of Pelham. The mayor and council contended that the charter of the town authorized the enactment of the ordinance. Certain citizens denied the legality of this contention, and brought their action, under this statute, to enjoin the mayor and council from operating the dispensary. It is true that in the discussion of the applicability of the act to the facts in that case, the Justice delivering the opinion quoted from the Standard Dictionary a definition of a “blind tiger” as a place where intoxicating liquors are sold on the Sly; yet it 'is apparent from the context that no precise definition of the term was intended, for he says: “Whatever a ‘blind tiger’ as commonly known may be, we are quite sure that the dispensary in question, which was being openly and publicly operated in the town of Pelham, in pursuance of an ordinance of the town, which those engaged in operating the dispensary evidently thought to be valid, was not such a place as is commonly known as a blind tiger.” The ground of decision, as made manifest in the syllabus, is that a public dispensary, operated under color of law, by public officials in the honest belief of the legality of their action, was not subject to abatement under the blind-tiger act. This was the point decided, and the definition from the Standard Dictionary was simply used as an illustration in the course of the argument.
In view of the foregoing discussion the instruction was erroneous; and as it related to a vital point in the case, a new trial must be had.
Judgment reversed.
Justice Beck was prevented by sickness from taking part in the decisions where his absence is noted in the reports of them.