Bienert v. State , 82 Ga. App. 179 ( 1950 )

MacIntyre, P. J.

Georgia as a whole is a dry State and the .general prohibition law as contained in Code §§ 58-101, 58-102, •et seq., generally known as the “bone dry” law, is in force and ■effect in every county of the State unless the prohibited liquors have been legalized by statute or statute and election held in ■conformity with the statute in the individual counties. Prior to the effective date of the act of 1937-38 (Ga. Laws, 1937-38 Ex. Sess., p. 103) the sale of distilled spirits and whisky was a ■violation of the prohibition law. Bibb County, the county in which the crime was alleged to have been committed had held, ■under the provisions of the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess. p. 103), an election and the county had voted “wet”; that is it had voted to legalize and control in such wet county the liquors described in the act; and, distilled spirits and whisky, being described in the act, are some of the liquors which are legalized and controlled by the provisions of the act. One of the controls provided for in the act is that a wholesaler must have a wholesaler’s license which “shall authorize the holder to engage in the sale of distilled spirits [which includes whisky] .at wholesale by selling to the holder of a wholesale license or the holder of a retail license for the purpose of resale. Code (Ann. Supp.), § 58-1025. This being a dry State, the reason why & wholesaler, as such, can sell distilled spirits (which includes whisky) to anyone is that the provisions of the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess. p. 103) gives him such a right, if he obtains a license as provided by the act. If this provision is not complied with by obtaining a wholesaler’s license, a wholesaler, as such, cannot sell the prohibited liquors to anyone. If that provision is complied with, he may, as plainly stated in such provision, sell to another wholesaler or retailer holding a proper license. By this provision, he is made an exception to; that is, he is removed from the operation of the general law as to these purchasers, but as to none other. Frierson v. State, 67 Ga. App. 829 (21 S. E. 2d, 438); Garrett v. State, 71 Ga. App. 449 (31 S. E. 2d, 244). The general prohibition law (Code .§ 58-101 et seq., as amended by the act of 1937-38, p. 103) is one law with a local option feature. See Crabb v. State, 88 Ga. 584, 588 (15 S. E. 455); Wheat v. Bainbridge, 168 Ga. 479, 480 (148 S. E. 332); Mayes v. Daniel, 186 Ga. 345, 356 (198 S. E. .535), and is a general law as it relates to both counties, dry and wet. It provides that in any county having an election as provided in the amendatory act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess. p. 103), where “a majority of the votes cast shall be in favor of taxing and controlling alcoholic beverages and liquors, the manufacture, possession, distribution, and sale of .such alcoholic beverages and liquors in such county shall be permitted in accordance with the provisions of this Chapter.” Code (Ann. Supp.), § 58-1008, meaning in accordance with the provisions of the general prohibition law (Code § 58-101 et seq. as amended by the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess., p. 103).

No statute has been adopted since the Code of 1933 purporting to authorize the sale of distilled spirits without a license from some authority and this is true even as to counties where the .sale is not prohibited by the act of 1937-38 (in wet counties). Distilled spirits and whisky are still prohibited liquors under Code § 58-101 et seq., as amended by the act of 1937-38 (Ga. Laws, 1937-38 et seq., p. 103), in any county where the sale is not prohibited (in wet counties) if the party selling has not obtained .a license as provided by law. In other words, the sale must be in a county where it is not prohibited and the seller must also have a license permitting him to sell it in order for the sale of the distilled spirits to be removed from the operation of the law .as stated in Code § 58-101 et seq., and amended by the act of 1937-38. See, in this connection, Sprayberry v. Wyatt, 203 Ga. 27, 35 (45 S. E. 2d, 625). The amendatory act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103), states that it shall be known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors and provides: “Licenses which may be issued under the authority of this Chapter shall be as set forth in sections 58-1024 to 58-1026 [§ 58-1024, to manufacturers; § 58-1025, to wholesalers; § 58-1026, to retailers].)) Code (Ann. Supp.), § 58-1023. Code (Ann. Supp.), § 58-1025 provides: “A wholesaler’s license shall authorize the holder to engage in the sale of distilled spirits at wholesale, by selling to the holder of a wholesale license or to the holder of a retail license for the purpose of resale.” Thus a wholesaler, as such, cannot obtain a-license to sell distilled spirits except to another wholesaler who holds a license or to a retailer who holds a license, for purposes of resale, and if he cannot obtain a license for any other purpose and he sells to some other person the sale to such other person is not removed from the operation of the law as stated in Code § 58-101 et seq., as amended by the act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess., p. 103). We think, therefore, that the accusation charges the commission of a penal offense under the laws of this State and is not subject to the demurrer.

Judgment affirmed.

Gardner and Townsend, JJ., concur.