136 Ga. 721 | Ga. | 1911
(After stating the foregoing facts.)
The general prohibition act not only makes it a misdemeanor to sell and barter, either directly or indirectly, intoxicating liquors, but also makes it a misdemeanor for a person to keep such liquors at any public place or at his place of business. Penal Code (1910), § 426. The tax ,act of 1909 imposed a specific tax of $500 “upon every social or fraternal club, corporation, association, or organization of any kind of persons who shall keep or permit to be kept in any room or place (or 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 an¡r ¡olace now prohibited by law, or which may hereafter be so prohibited.” Civil Code (1910), § 933. In the tax act the legislature was dealing with social or fraternal clubs, associations organized not for the purpose of trade and profit or for carrying on a business. The proviso in the act distinctly disclaims any intention to depart from the general policy of the prohibition act. Under the doctrine of noscitur a sociis, all organizations or clubs which permit lockers for the storing of intoxicating liquors must be of a social or fraternal character. The legislative conception of a fraternal club is one organized for the entertainment and comfort of its members — a definite organization with a continuing existence, in contradistinction to an ephemeral gathering for a particular occasion, with no idea of permanency in the fellowship and association of its constituency. The club contemplated is a voluntary association of individuals organized for fraternal and social purposes, and not for gain, and provided with a place of rendezvous for its members. The proviso of the tax act is in effect a legislative construction of the prohibition act that the habitat of a social or fraternal club is not to be regarded as a public place or a place of -business, since it is declared in the tax act that the placing of a tax on clubs of this kind shall not be construed to license or permit the keep
The charter of the City of Atlanta contains a general welfare clause of very ample powers. Under the welfare clause the city may establish suitable ordinances for administering the government of the city, the maintenance of peace and order, the preservation of the health of its inhabitants, and for the performance of the general duties required of it in its charter. Where the State has established its policy to regulate under the police powers particular conditions, it is within the power of a municipal corporation, under its general welfare clause, to establish any reasonable ordinance designed to enforce .this general policy. The-State lav .prohibits-a dealer from pursuing his ordinary, calling.-upon the Sabbath day, and it was held that it was competent..'fox’, the- City of Atlanta by ordinance to compel all dealers tu keep the doors of
While the ordinance requiring a license or permit of a social club contains some regulatory features, these are so inseparably connected with the provision for obtaining a license that they become incidental to the main purpose of the ordinance, which is to require a license tax as a condition precedent to the opening and maintaining of a social club. As we have pointed out, the City of Atlanta has no express charter power to require a license tax of a social club as a condition precedent to its keeping on hand intoxicating liquors, and such power is not to be implied under the general welfare clause. Treating the ordinance as one-requiring a license tax from a social club as a permit or prerequisite to its keeping on hand intoxicating liquors, it is ultra vires and void.
Judgment reversed.