Crabb v. State , 88 Ga. 584 ( 1892 )

Lumpkin, Justice.

1. There is not the slightest intimation in the title of the act of September 19, 1881, “ to regulate the sale of spirituous or intoxicating liquors of any kind in the county of Polk,” etc., that it intends to absolutely prohibit the sale of such liquors in that county, and yet the act declares that in case the election which is to he held under its provisions shall result in favor of a “restriction” of the sale of such liquors, then it shall be a misdemeanor to sell liquors at all in that county. In other words, the sale of liquors will be entirely prohibited. So much of the act, therefore, as absolutely prohibits the sale of liquors, in the event contemplated, is manifestly in conflict with the paragraph of our constitution forbidding the passage of any law which “contains matter different from what is expressed in the title thereof.” Code, §5067.

2. The act approved September 18, 1885, and known as “the general local option liquor law,” is a general law providing for obtaining prohibition in the several counties of this State. It is true that sec. 9 of this act enacts that no elections shall be held under its provisions in any county, or other place, where the sale of spirituous liquors is already prohibited by high license, local option or other legislation, so long as these local laws remain of force, but the act, nevertheless, undoubtedly contemplates that it may operate in counties, or other localities, where prohibition existed at the time of its passage, whenever such prohibition shall cease to exist, and therefore the act may, and does, apply to every county and section of the State. In this respect it differs’ from the county court act construed by this court in Lorentz & Rittler v. Alexander, 87 Ga. 444. That act expressly excepted from its operation the county of Walton by name and also all counties having a city court 'and all county courts then existing. So there were many counties in the State in which it could not, as enacted, ever operate at all. We have seen, however, there is no county in the State to which the general local option law will not in certain contingencies, which the law itself anticipates, be applicable. Moreover, all the counties in which the operation of the act last mentioned was temporarily suspended already had the benefit of the very thing this act was intended to confer, viz. a prohibition of the sale of intoxicating liquors. It follows that the act approved October 26, 1889, “to prohibit the sale of intoxicating, malt or spirituous liquors in any quantity in the county of Polk,” being an attempt to obtain prohibition in that county without having an election, as the general law requires, is unconstitutional. The general prohibition law being in force in Polk county before the passage of the act last mentioned, the latter violates art. 1, sec. 4, par. 1, of the constitution which provides that ‘‘no special law shall be enacted in any case for which provision has been made by an existing general law.” Code, §5027. Substantially the.same question was ruled by this court in the “fence” cases of Mathis v. Jones, 84 Ga. 804, and Camp v. Tompkins, Id. 812.

3, 4. The two local liquor laws for Polk county being unconstitutional, do not, therefore, present any obstacle to enforcing the general local option law in that county.

It is certainly not necessary that the indictment should specify any particular act upon which it is founded. It has never been contended, as far as we are aware, since the adoption of the code, that an indictment should specify a particular section thereof, and there would certainly be as much reason for requiring this to be done as that it should designate a particular act of the legislature. If the indictment charges that the alleged criminal act was “ contrary to the laws of said State, the good order, peace and dignity thereof, ” it is in this respect sufficient. Code, §4628.

5. The principles enunciated in the fifth head-note are sustained by the following authorities: State v. O’Neil, 58 Vt. 140, s. c. 2 At. R. 586; State v. Goss, 59 Vt. 266; Baker v. Bourcicault, 1 Daly, 23; U. S. v. Shriver, 23 Fed. Rep. 134; U. S. v. Cline, 26 Id. 515; Newmark on Sales, 375; 7 Am. & Eng. Enc. of L. 579. On the other hand see Sarbecker v. State, 65 Wis. 171; Pilgreen v. State, 71 Ala. 368; State v. Carl & Tobey, 43 Ark. 353; State v. Intoxicating Liquors, 73 Me. 278; Com. v. Fleming, 130 Pa. St. 138; Smith v. State, 16 S. W. Rep. 2; Boothby v. Plaisted, 51 N. H. 436. In our opinion, however, the authorities first above cited are in accord with the true law of the subject. Judgment affirmed.