Town of Douglasville v. Johns , 62 Ga. 423 ( 1879 )

Jackson, Justice.

The town of Donglasville exacted a license fee or tax for retailing liquors at the rate of $150.00 per annum from the defendant in error, Johns; whereupon he sued the town to recover the money paid, and the jury found for him $225.00 principal, and $38.41 interest. The town moved for a new trial, and on its refusal excepted and brought the case to this court.

1. The main question is, did the town have the right to exact the license tax ? That is to be answered by its charter. The charter is found in acts of 1875, p. 162, and in acts of 1876, p. 25, and in the Code, sections 774 to 797 inclusive. The act of 1876 incorporates these provisions of the Code into the charter of the town and makes them part thereof. Section 783 is thus made part of the charter, and that section is as follows :

“ Whenever anything for which state license is required, is to be done within such town or village, the council may require a-town or village license therefor, and may impose a tax thereon, for the use of the town or village, and may require a bond with sureties conditioned as prescribed in section 779, payable to such town or village, in such penalt}1' as it may think propel’} and may revoke such license at any time if the condition of said bond be broken.”

It is argued for defendant in error, that inasmuch as the state allowed the counties to issue these licenses by section 529 of the Code, until the act of February 25, 1876, therefore the words, “ state license,” did not authorize or embrace, or confer the power on the town to license ; and so the court below seemed to have held. But we think that the section cited does empower the town to tax and license retailers. The state operates through counties. The practical administration of justice and execution of law is entrusted by it to the counties. County license to retailers is by authority of the state and for the state, and the people thereof residing in that part of it embraced within the counties ; and in this particular section the intention of the legislature was to confer the power upon towns to tax for such license therein, whenever the state through the counties required such a license. The words would be without meaning otherwise.

Indeed, such has ever been the law of Georgia, see Cobb’s Digest, p. 1038-39, acts of 1809 and 1838 ; and it seems to us clear that such was the intention of this section of the Code, being part of the act of 1872, and made part of this charter. Construing all our legislation in'pari materia and gathering light from our past history, all doubt vanishes. Hence the penal code prescribes punishment for retailing without license and has done so time out of mind, and the indictment had to negative the idea that the retailer had been licensed by a town or city. Cobb, 818; Code, §4565. We therefore hold that the power to levy this tax or license charge, is conferred by its charter on the town of Douglasville.

2. Has the town exercised -the power ? The defendant in error has paid the tax and now seeks to recover it. The town exacted it of him. The presumption is that it passed an ordinance levying the tax or its marshal would not have collected it, nor would the defendant in error have paid it. As he seeks to get back money illegally exacted from him as he charges, he must show that it was illegally exacted. It is upon him to produce the minute book, and show wherein the ordinance was not legally enacted. He holds the affirmative. The town has the money. To get it he must show it has it wrongfully, and wrongfully took it from him. Therefore, we hold that it was for him, not for the town, to introduce the proper book — minute book — and to show that the power conferred by the'charter was illegally exercised.

3. It matters not that the act of 1872 — embraced in these provisions or sections of the Code — from 774 to 797 — is unconstitutional, so far.as it undertook to amend charters, as held in 60 Ga., 404. The charter granted Douglassville in 1876, put these provisions in its organic law and made them part of itself. The legislature might have taken them from an English book or from a newspaper, and engrafted them on the charter ; when it did so, it became law to this town, and all its citizens.

For the reasons above set forth, we are of the opinion, that the charge of the court and the verdict of the jury; were and are illegal, and we must reverse the judgment overruling the motion for a new trial, and direct that the-same be granted, and the case tried in accordance with the-above views.

Judgment reversed.