James A. Sanders & Son v. Town Council

50 Ga. 178

• Court: Supreme Court of Georgia
• Decided: July 15, 1873
• Status: Published

Opinion

McCay, Judge.

1. The authorities of Elberton are, by the act of incorporation, clothed with power to license and regulate the sale of spirituous liquors in said town: Act of 1859, page 153; Acts of 1865 and 1866, page 277. It seems to us that in the very nature of this power to regulate, is the power to confine the sale to certain houses, to certain places or localities, and to certain persons: 5 Georgia, 549; 10 Ibid.. 533; 18 Ibid., 603.

We see no reason why this power to regulate should not include the power to confine the sale to certain streets, certain houses, rooms in houses, or portions of a room. Any one may see that there may be special reasons, for police purposes, for the preservation of order, for the prevention of annoyance to quiet citizens, why, in particular instances, one or the other of these regulations might with great propriety be made.

The kind of regulation is left to the Council, and that power is exclusive in that body, nor will the Courts control its exercise, unless it be abused: 12 Georgia, 25; 19 Ibid., 490; 23 Ibid., 569.

We think, for these reasons, that there is nothing in this record showing any illegality in the action of the Council, confining the license to a particular room in the house of the applicants. They might exercise their power to regulate either by a general ordinance, or by specific regulations in each case, as the circumstances may in that case demand.

2. But independently of the right to regulate, and therefore to confine the sale to a particular room, it is not clear to us that in this case there is not an effort to get permission to set up two liquor shops under one license. These two rooms, under the admitted facts, are so situated as, in a very fair sense, to make two different places. They open on different streets, there is no communication inside between them, and they are on different stories; they are to be kept each by a distinct member of the firm, who will keep a separate account. We think it was no abuse of the exercise of the sound judgment of the Council to conclude that each was a distinct place; and that the fact of one firm being the owner of both, did not alter the case. How much further, when the business should be opened, this distinctiveness would go, is tolerably evident. Perhaps they are to be visited by different classes of people, sell at different prices, and different quantities of the same named liquor, opened at different hours and have entirely different manners, customs and practices. How far the admitted facts make these two rooms different places the Council has determined as a question of fact. We see nothing in the case to justify the conclusion that this decision is an abuse of power, and we, for both the reasons given, affirm the judgment refusing the certiorari.

Judgment affirmed.