Papworth v. State , 103 Ga. 36 ( 1897 )

Lumpkin, P. J.

On the 27th of February, 1877, the General Assembly passed an act legalizing the sale of domestic wines, by the manufacturers thereof, in quantities of not less than one quart, anywhere in the State of Georgia. See Acts of. 1877, p. 33. This act expressly declared that it should have the effect stated, notwithstanding the provisions embraced in a number of designated sections of the Code relating to unlawful sales of liquors, and notwithstanding “any provision, or provisions, of law requiring any license or oath, or other regulation or condition, prohibition, or penalty.” It was therefore plainly the intention of the General Assembly, in enacting this statute, to place sales of domestic wines by the manufacturers thereof, in quantities of not less than one quart, upon the same footing as sales of other-commodities, and to exempt such sales of such wines from the operation of all laws of force in this State regulating or prohibiting traffic in spirituous or intoxicating liquors. It will not be questioned that domestic wines are “intoxicating liquors,” and the General Assembly therefore deliberately intended to put, within the limits indicated, this class of intoxicants upon the “free list.” The act with which we are now dealing was certainly a general law, and it follows that the General Assembly could not constitutionally vary its provisions in any locality in Georgia by special legislation. Nevertheless, while this act was in full force, the General Assembly, on September 26th, 1879, attempted to do this very thing bypassing an act “to entirely prohibit the sale of spirituous or intoxicating liquors within the limits of Irwin county.” Acts of 1878-9, p. 388. This latter act, in general and universal terms, declared that “the sale of all spirituous or intoxicating liquors are prohibited within the limits of Irwin county,” and rendered any violation of its provisions a misdemeanor. The language of this act is too plain to admit of any doubt as to its meaning. It is not susceptible of more than one construction, and therefore must be taken to mean that any sale of domestic wine in Irwin county should be an indictable offense. But for the constitutional provision forbidding special legislation in a case for which provision has been made by an existing general law, no one could for an instant doubt that a sale of domestic wine, by any person, or in any quantity, in Irwin county, would be obnoxious to the provisions of this act, and would subject the offender to punishment; and it will not do to hold that merely because the General Assembly could not constitutionally pass such an act, it meant less than it unequivocally said in framing the terms of the act in question. As was remarked by Simmons, Justice (now Chief Justice), in the case of Elliott v. State, 91 Ga. 696, “the courts can not construct from a defective statute a law which the lawmaking body did not intend to enact, and which it can not be presumed it would have been willing to enact.” In the present case, the General Assembly attempted, though it could not constitutionally accomplish its purpose, to put in force in Irwin county an entirely new policy as to the sale of domestic wines, and to put an end to. all traffic in that class of intoxicants and all others. In other words, the scheme of the act was total prohibition for Irwin county; and, again quoting Justice Simmons, “it can not be assumed that the legislature would have been willing to enact the statute, if its effect would be to establish a scheme of partial prohibition, and permit the traffic to continue as to all but one class of liquors.” It seems to us that the Elliott case, and the authorities there cited, are directly in point in the case now under consideration, and that the decision of it should be thereby absolutely controlled.

We of course recognize, and are anxious to follow, the fundamental and thoroughly established rule that if any legislative act is capable of such a construction as will permit it constitutionally to stand, the courts should adopt that construction and save the statute. As an instance in point, see Singer Manufacturing Co. v. Wright, 97 Ga. 114, where it was held that the words, “every sewing-machine company,” occurring in a tax act attacked as being unconstitutional, could properly be said to comprehend and include “individuals” manufacturing and selling sewing-machines, it appearing that it was the intention of the General Assembly to lay a tax upon the business itself, and not upon any given class of persons engaged therein. Where, however, the language of a statute is capable of receiving but one construction, it is not permissible to either extend or restrict its obvious meaning, and thus, for the purpose of maintaining its constitutionality, impute to the General Assembly a purpose which it neither expressly nor by implication professed to have in view in enacting the law. In other words, we do not think a statute which is' irreconcilably unconstitutional can be saved by giving it a signification at variance with its plainly expressed terms. An instance of this kind is here presented.

Judgment reversed.

All the Justices concurring, except