The granting of a mandamus absolute requiring a municipality to adopt reasonable regulations concerning the manufacture and sale of alcoholic beverages and liquors is assigned as error here. John A. Moran filed a petition in the Superior Court of Fulton County against the Mayor and Councilmen of the City of East Point to compel such regulation. His petition, insofar as essential to this review, made the allegations which follow.
An election held in Fulton County on March 30, 1938, pursuant to Ga. L. 1937-38, Ex. Sess., p. 103, resulted in a majority of the votes cast favoring the taxing and controlling of alcoholic beverages and liquors, thus permitting their manufacture, sale and distribution in that county. The defendants, as the governing authority of the city of East Point, are charged with the duty of regulating the sale of liquor in that municipality, but they have failed to do so by refusing to enact regulatory ordinances and by refusing to grant licenses to engage in the retail sale of liquors. The plaintiff, as a citizen of such state, county and municipality,
To this petition the defendants interposed an answer, admitting the essential facts of the petition but denying that they have any duty to regulate pursuant to such statute, that they should be required to regulate, and that the plaintiff is entitled to bring this action. The answer also alleged that no license to sell liquors has been granted since 1938, and that while the municipality had adopted regulations under such statute they were recently repealed. No copy or substance of such regulations was plead. A copy of the repealing ordinance recites that the manufacture or sale of alcoholic beverages and liquors "is hereby prohibited," and that no license therefor may henceforth be sold.
In addition to an answer the defendants filed general demurrers and special pleas. No order on the demurrers appears in the record but the defendants assert that they should have been sustained. No proof or admission of the special pleas was offered, hence no further reference to them will be made.
Upon the trial the case was submitted on the petition and answer without the formal introduction of evidence and without a jury. The judgment of mandamus absolute assigned as error here resulted.
1. As to the plaintiff's standing to bring this suit, the case at bar is controlled by the unanimous decision in Thomas v. Ragsdale, 188 Ga. 238 (3 S.E.2d 567). There it was held that "Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that the plaintiff is interested in having the laws executed and the duty in question enforced." (Headnote 1.) The allegations here comport with that holding.
2. The decision in the Ragsdale case, 188 Ga. 238, supra, likewise governs here on the merits. In that case, the Fulton County Commissioners had passed a resolution reciting that they would not issue any licenses for the sale of liquor in the unincorporated areas of the county and had not formulated any regulations for the issuance of such licenses.
What was said in the Ragsdale case, supra, as to counties is also applicable to the municipalities in such counties. The consequences of an election favoring control of alcoholic beverages and liquors cannot be avoided upon the theory that the result binds only the unincorporated areas of a county. The 1938 Act provides that the question of permitting or prohibiting the sale of liquor shall be submitted "to the voters of the county," and that if a majority of the votes shall be favorable, the sale of liquor "in such county" shall be permitted. Thus, the election and the result are county wide. Nowhere in the Act is there any procedure for a municipality to conduct such an election.
Such county election, being provided for by general law, must prevail over any contrary charter provision of a municipality within the county. Therefore, no support for the defendants' position is provided by the City of East Point's charter provision authorizing it to "control and/or prohibit the manufacture and/or sale of all alcoholic beverages." Ga. L. 1937. pp. 1873, 1875; Ga. L. 1957, pp. 2429, 2495. Such provision is a special law where there exists a general law, in violation of the State Constitution. Ga. Const., Art. I, Sec. IV, Par. I; Code Ann. § 2-401. Furthermore, a general law cannot be amended, modified or repealed by a special law. Stewart v. Anderson, 140 Ga. 31
We are aware of the rule that this court will not pass upon the constitutionality of a statute unless the point was made and passed upon in the trial court. However, that rule has no application here, where each side relies upon a statute, one of which is clearly invalid, and the court must decide which statute governs. In such a situation, regardless of any lack of specific attack on the invalid one, the court must apply the valid statute, rather than the invalid one, in order to correctly decide the case.
The facts in the instant case, like those in the Ragsdale case, 188 Ga. 238, supra, show an effort to prohibit, not regulate, the sale of liquor, notwithstanding the election in favor of legalizing its sale. This situation, if allowed to stand, would thwart local option, the very foundation of the 1938 Act.
(a) A different result is not to be had because of the power given to municipalities to zone for particular uses. Ga. L. 1946, p. 191; Ga. L. 1957, p. 420. This authority does not impinge upon the power of the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors." Ga. L. 1937-38, Ex. Sess., p. 103. Each operates in its own sphere. See Plaza Liquor Store, Inc. v. City of Atlanta, 220 Ga. 615, 617 (140 S.E.2d 868).
(b) The present suit is not barred by the 20 year statute of limitations of Code Ann. § 3-704 for enforcement of rights accruing under statutes, acts of incorporation or by operation of law. Here, the action arose not by any right given individuals, but because of the refusal of the public officers to perform their duty under the law.
(c) The foregoing rulings having reference to the judgment granting the prayer for mandamus absolute are controlling upon the contention that the general demurrers should have been sustained.
Judgment affirmed. All the Justices concur, except Candler and Mobley, JJ., who dissent.
CANDLER, Justice, dissenting.
I think the trial judge erred in granting a mandamus absolute in this case. Section 193 (14) of an Act which the Governor approved on March 5, 1957 (Ga. L. 1957, pp. 2429, 2495) provides that the City of East Point may "control and/or prohibit the manufacture and/or sale of alcoholic
I am authorized to state that Mr. Justice Mobley concurs in this dissent.