116 Ga. 93 | Ga. | 1902
On April 14, 1902, Harrison and others, as citizens and residents of the town of Ball Ground in Cherokee county, filed their petition against J. W. Wray, alleging that the defendant was maintaining and running a “ blind tiger ” in the town of Ball Ground by selling intoxicating and spirituous liquors in violation of law. One of the paragraphs of the petition was in the following language: “Petitioners show that the said Wray claims to be operating said place under a pretended license granted him by the town council of Ball Ground, but petitioners charge that said so-called license is absolutely null and void, for the reasons hereinafter stated.” The principal reason alleged why the license was void was that it was not granted upon a petition signed by two thirds of the citizens of the town, asking that the license be issued, as required by law. The prayer of the petition was that an injunction be granted, restraining the defendant “from the further prosecution and running of said ‘ blind tiger,’ and from the further selling of any spirituous, malt, or intoxicating liquors in said town.” The defendant filed a demurrer and answer, and introduced certain evidence claimed to support the allegations of the answer thus filed. The demurrer did not raise the question as to whether one openly selling liquor under color of authority was running a “ blind tiger.” After considering the pleadings and the evidence, the judge, on April 21, 1902, granted an order “that the prayer for injunction be and the same is hereby granted, and the defendant is restrained as prayed.” This judgment was not excepted to. On April 28, 1902, there came on to be heard before the judge of the superior court of Cherokee county a petition filed by the persons who were the plaintiffs in the foregoing petition, alleging that the order grant
'On May 7,1902, Wray filed a petition praying that the injunction entered against him on April 21 be dissolved; and that the order for the attachment be vacated or so modified as to provide for a punishment as for a technical but not an intentional violation of the injunction. This petition contained substantially the following allegations: Petitioner did not understand that the injunction issued against him restrained him from procuring or the mayor and council from issuing to him a new license, but regarded the order
1. Under the charter of the town of Ball Ground the mayor and council were authorized to issue licenses for the sale of spirituous and malt liquors at retail, but no license could be issued unless the applicant for the same presented with his application “a petition signed by two thirds of the citizens of said town, asking for such license.” Acts 1882 — 3, p. 478, sec. 14. One of the questions to be determined in this case is, who are citizens of the town of Ball Ground, within the meaning of that provision of the charter just quoted? Does the term “citizens” include males and females, adults and infants, or did the General Assembly use the word as synonymous with “ qualified voters ? ” A citizen has been defined to be “A person, native or naturalized, of either sex, who owes allegiance to a government, and is entitled to reciprocal protection from it.” Webster’s International Dictionary. In this broad sense not only adult males are citizens but females of any age and infants of either sex. Infants, insane persons, and felony convicts whose offenses involve moral turpitude, even when actually serving a-term of penal servitude, are also citizens within the broad meaning of the term. Certainly it was not the intention of the General Assembly to provide that an applicant for the sale of liquors in the town of Ball Ground should present a petition signed by two
From motives of the character just referred to, the framers of our government, out of deference to the superior rights of the female citizen, not only excused her from the burdensome' duties of citizenship above referred to and the duties incident to the elective
2. It follows from what has been said that the first license to Wray was illegal and void, and that the second was lawful and regular in all respects. The judge granted the injunction to restrain Wray from selling liquor under the first license, upon the ground that such an injunction was authorized by what is known as the “blind tiger” law. Acts 1899, p. 73, Van Epps’ Code Supp. § 6654 et seq. Whether a person selling liquor openly and under color of authority is running a “blind tiger” within the meaning of that law is a question not raised in the present case. The injunction, however, did not have the effect to restrain Wray from proceeding to secure a license to be issued to him in accordance with the law; and when such a license was issued, this authorized him to sell. Properly construed, the order of the judge simply restrained Wray from selling liquor in the town of Ball Ground without a lawful license, and. a sale by him after the injunction was granted, under authority of a license which was legal and regular in all respects was not a violation of the injunction. The judge therefore erred in striking that part of the answer of the defendant to the rule for contempt which attempted to set up that-the sales which were alleged to have been in violation of the order of the court were made under authority of a lawful license which had been granted after the order was passed. Under the allegations of his answer Wray never violated the injunction. He was never in contempt. He should not have been attached for contempt; and this being true, the fact that he was attached constituted no sufficient reason for refusing to hear him on the motion to dissolve the injunction. If he had really violated the injunction, then of course he should not have been heard on the motion to dissolve until he had purged himself of this contempt. See, in this connection, Remley v. DeWall, 41 Ga. 466 (3); Jacoby v. Goetter, 74 Ala. 427; 2 High, Inj. (3d ed.) § 1464. The judge erred in his rulings which resulted-in the defendant being attached for contempt, and there was no error in dissolving the injunction.
Judgment in one case reversed; in the other aflrmed.