Bernstein v. Peters , 69 Ga. App. 525 ( 1943 )

I prepared and concur in the opinion of the court, except that part which holds that part of subsection (b) of paragraph 6 of the defendant's plea is good against general demurrer. I dissent from that ruling, and from the judgment of reversal. I desire to add the following in respect thereto:

While it is alleged in the plea that under the rules and regulations of the Department of Revenue, adopted pursuant to the authority granted in the act relied on, it was unlawful for a wholesaler in alcoholic liquors to deliver to a retailer any such liquors at any place other than his licensed package shop, such allegations amount only to a conclusion of law, the rules or regulations or the substance thereof not being set forth in the plea. This court can not take judicial cognizance whether or not, though authorized, the revenue commissioner has in fact made any rules or regulations respecting delivery of liquor by a wholesaler to a retailer. See Shurman v. Atlanta, 148 Ga. 1 (3), 14 (95 S.E. 698); Crouch v. Fisher, 43 Ga. App. 484 (159 S.E. 746). While in the plea of the defendant a general conclusion is stated, that under the rules and regulations of the Department of Revenue "it was made unlawful for a wholesale dealer in alcoholic liquors to deliver to a retail dealer therein any alcoholic liquors at any place other than his licensed liquor store or package shop operated by the purchaser," this, in my opinion, was not sufficient to withstand the general demurrer. The allegation is a legal conclusion of the pleader as to the effect of the rules; not what the rules are or the substance thereof. A demurrer admits well-pleaded facts, but does not admit conclusions of law. Facts and not legal conclusions must be alleged. Butler v. Dublin,191 Ga. 551,555 (4) (13 S.E.2d, 362); Forrester v. Edwards, 192 Ga. 529, 534 (2) (15 S.E.2d 851). The defendant alleged in his plea that under the revenue tax act to legalize and control alcoholic beverages and liquors it was made unlawful for a wholesale dealer in liquors to deliver to a retailer any alcoholic liquors at any place other than his licensed liquor store or package shop. This allegation is only a conclusion on the part of the pleader as to the effect of the act, as we can look to the act and see that a wholesaler is not prohibited thereby from delivering liquor to a retailer at a place other than his liquor store or package shop. Likewise, when he fails to plead the rules and regulations of the commissioner or to set them out in substance, the allegation that under them it was made unlawful for a wholesaler to deliver liquor to a retailer at a place other than his licensed liquor store or package shop is a legal conclusion on the part of the pleader. I think the allegation was subject to the demurrer, and that the court did not err in sustaining the general demurrer to the plea.