Wingfield v. Kutres

136 Ga. 345 | Ga. | 1911

Atkinson, J.

In support of the contention that section three requires a separate license for each place of business in the county of a dealer in the beverages therein referred to, counsel for the plaintiffs in error urged that the act is a police measure and also a revenue measure, and that whether it be considered as a revenue measure pure and simple, or police measure pure and simple, or as of the dual character, having for its purpose both regulation and revenue, it is inconceivable that the General Assembly intended that the payment of one license fee should authorize a license designating no place of business, but authorize the holder to engage in business at any number of places in the county that he might see proper. It was pointed out that if the licensee could carry on the business at any number of places, it would be possible for one person to have a monopoly of the sale of the imitations in each county in the State in which their sale was authorized, because the law does not compel the holder of the license to conduct the sales in person, and the sales might be conducted at numerous places by duly authorized agents acting in good faith. Also, that it would open the .door to fraud,- so. as to defeat the revenue purpose of the act by a collusive arrangement between different persons, all claiming to sell under the license of one person. It was further ¡minted out, that the purpose of the license is to locate the business of the holder, in order that he may be under the supervision of the authorities to see that no violation of law takes place, and that the business is conducted in such manner as not to interfere with the public peace and _ welfare; and that this purpose would be defeated to a large extent if the licensee should be permitted to engage in sales at numerous places. To locate the place of business of the holder of the license is not necessarily the sole purpose of a 'license-. A business may be licensed, or a person may be licensed to transact business, and in neither instance is restriction to a particular place essential. The legislature may not deem that the character of the business is such that for the purpose of police regulation it should be restricted to a particular place. All of the reasons pointed out by the plaintiffs in error, as above enumerated, to show why the act should bo construed as contended for by them, were appropriate matters for consideration by the legislature in enacting the law; but they are all consistent with the construction placed upon the act by the trial court, and do not require a different construction. The act might produce less revenue if one fee and license authorize a person to deal at a single place rather than in a number of places, or it might not; and whether it would or not, and whether the legislature, in dealing with the matter as a revenue matter, was satisfied to exact but one license and fee from a dealer in each county in which he should carry on the business, was a matter for legislative consideration. Tt was also for the legislature to determine what police supervision, if any, should be required for this particular character of business; and the argument that it .might to a greater or less extent require such supervision would not necessitate'the construction contended for by the plaintiffs in error. As a revenue measure the exaction of a license of $200 for 'each dealer in each county in which he carries on the business of selling the imitations specified in the act comports with the object of the act. As a police measure the penalty imposed by other sections of the act comports with that object. Section. three omits any reference to location at which the licensed sales may be made, save only that in declaring how licenses shall'be obtained it is provided that they shall be granted by the ordinary of the county wherein such business is carried on. The nature of the business is such as that it could he located at a given place or places, or be conducted in a transitory manner, and there is no attempt to confine its operation to one or more localities. In construing statutes subsequent acts of the legislature on the same subject may be considered. Barron v. Terrell, 124 Ga. 1077-79 (53 S. E. 181). Paragraph 3 of section 7 of the general tax act approved August 16th. 1909 (Acts 1909, pp. 36-64), deals with the subject covered by section three of the act of T908 involved in this case, and, in addition to raising the license fee to $300, declares that it shall be paid “for each place of business,” and also restricts the right to engage in such business to the limits of incorporated cities, towns, or villages of not less than a specified number of inhabitants. This seems to be a recognition by the legislature that the former act did not exact a license fee for each separate place of business, and the manifestation of an intention to change the law so that a separate license fee might he required for each place of business, In former general tax acts, such as the act approved August 15th, 1904 (Acts 1904, p. 26), in dealing with licenses to engage in businesses of similar character, where it was intended that a license foe should he paid “for each place of business,” it was expressly so declared. The right to sell near beer without the payment of a license is inherent, unless expressly restricted by statute, and statutes exacting licenses for such purposes are to be strictly construed. But it does not require a strict construction of this statute to hold that section three was not intended to exact a separate license for each place of business. While it might have done so, the General Assembly, dealing with the subject as it then appeared to it, was content to exact one fee and require a license from every person, firm, or corporation engaging in the business in the county. Subsequent events seem to have caused the legislature to view the matter differently, and to change the law, as already pointed out, not only as to the amount of each license fee charged, but by requiring' a separate license for each place of business in each county, and restricting the right to carry on such business to the limits of incorporated cities, towns, and villages containing more than a specified number of inhabitants. Counsel for plaintiffs in error have cited the following authorities: Malkan v. Chicago, 217 Ill. 471 (75 N. E. 548, 2 L. R. A. (N. S.) 488); Wason v. Severance, 2 N. H. 501; Murrell v. Bokenfohr, 108 La. 19 (32 So. 176); Matter of Lyman, 59 N. Y. App. Div. 217 (69 N. Y. Supp. 309); 21 A. & E. Enc. Law (2d ed.), 814, note 7; 23 Cyc. 119 (C), note 69; 17 A. & E. Enc. Law (2d ed.), 237; State v. Walker, 16 Maine, 241. But an examination of all of them, except the last, shows that there were restrictions in the statutes or ordinances, and in some cases licenses (upon which the right to transact the business depended under the law of the .State), which expressly confined the licensee to conduct the business mentioned at specified places. In the-last ease cited, to wit. State v. Walker, 16 Maine, 241, the ruling, which restricted the operation of the license to one place, was based largely on the fact that the statute which exacted the license required that the person to be licensed should have certain moral qualifications to be ascertained by the judgment of certain officers, and that any person so approved, before being licensed, should give bond, conditioned as prescribed in the statute. The decision was rendered in a case against the' mere agent, who had not executed the bond. The act there under consideration also contained a provision that “no inn-holder, victualler, or retailer shall suffer any disorderly conduct in his house, shop, or dependencies thereof, nor suffer any person to drink to drunkenness or excess in bis or her house or shop, or suffer any minor or servant to sit drinking there,” which the court declared indicated but one house, and one shop, to be conducted by one person. The reasoning of the court in that case will not apply to a statute similar to that which wo have under consideration, where no qualifications are prescribed and no bond required for one who desires to engage in such business, and where the act contains nothing to indicate that one particular place of business was in contemplation of the legislature.

Judgment affirmed.

All Ike Justices concur.