The morning news. [volume] (Savannah, Ga.) 1887-1900, 1893-04-07
THE 3-MILELAW D0WNED
sAVANNAH's LIQUOR LIMITS TWO
MILSS FROM THE CORPORATION.

Judge MacDonen Renders Bis De-
c!sion IN the Fountain Case, Dismiss
! ing the Prosecution - The State,
| Church and School L NIT Law Can
/ not Interfere With the Storekeepsr
or Prevent Him Retailing Whisky
Under the Protection of the City.
! The Text of the Decision.
| Judge MacDonell rendered q decision
yesterday in the city court as TO the COR
/ porate and jurisdictional rights of the city
in relation to licensing liquor dealers as
against the state law prohibiting the selling
OF liquor outside of Incorporated cities and
towns within three miles OF church or
school house.
The Mount Zion Methodist church
| (coIored) brought criminal action Feb.
last against George W. Fountain, who
keeps store on the Ogeechee road 81
miles from the city exchange alleging that
he was violating tho state law by retailing
spirituous liquors in close proximity to the
! church, which is not in an incorporated
town. Judge MacDonell took the case un-
der advisement, and his decision Is against
the church.
After quoting the state code defining the
jurisdictional limits of Savannah as two
miles beyond the corporate limits, Judge
MacDonell says:
The question raised was whether this distinct
grant of powers to the municipal corporation.
which it has exercised for so many years ana
upon which Fountains right to sell depended,
was affected by the act of Aug II. 1891, so as
to confine the licensing power of the city to To-
calities within tie corporate limits.
THE RULE OF CONSTRUCTION.
In constituting statutes the rule is that a local
or particular law is not ordinarily repealed by a
general !aw unless particularly named, or nee
esSarliy from its terms embraced therein. The
local law in question is not particularly named
In the act Is it necessarily from the terms OF
the act embraced thereinY The supreme court
in Il Ga, page 4G1, and "A Ga, page 42,
have questioned whether, since the constitution
or 1877, there can be any repeal by fmplica-
lion in Georgia. This, they say, was not
toe hasty doubt Of the member of the court de-
livering the opinion, but was entertained by
each member OF the court, ana was expressed
upon delberetion, after able argument by
learned and experienced counsel Without re-
gard, however, to the constitutional restrictions.
the act in terms provides that its provisions
shall not apply to any incorporated town or
city in this state " 1t was commended by the
solicitor that this a question of territorial
application, and that the exemption from the
operation OF the act was confined to the terri
tory witnn the corporate limits of the city.
Wrat constitutes an Incorporated cityY If the
act las no application Whatever to the city of
Savannah, it cannot take away or affect any of
its powers, much less so important delegation
Of the police power Of the state as this
NO DISTINCTION IN THE LIMITS.
For the purposes of this legislation the ter
ritory embraced within the juristictiona limits
two miles beyond the corporate limits are az
much part and parcel of the city of Savannah
as that within what is known as the corporate
limits. There is no distinction, the differences
between the two Is only nominal.
In the case OF Hart VS.. the state SIS Ga page
OBS, Justice Lumpkin. constituting a similar
act, says:
Acts forbidding the sale OF LIQUORS in the
vicinity OF churches are in the nature of police
regulations. Their manifest purpose Is to Sc
cure peace, tranquility and good order at and
around these places devoted to divine worship
by preventing the location OF liquor shops 80
near as to subject con gregations TO those annoy
ances and disturbances which too frequently
result from the sale and use OF ar ent spirits
/ The benefits arising from legislation OF this
kind are peculiarly adapted to and needed by
churches located in the country for the reason
that they ar5 not otherwise protected from the
evils mentioned; but in cities towns and vii
lagos, duly Incorporated and having regular
police officers specially charged with the duty
of looking after places where the LIQUORS are
sold, and preserving order at and around them
there IS far less likelihood of diSorderly con
duct, and when it does occur It can be promptly
suppressed, Indeed churches Within and in
the vicinity of these municipalities, are as a
inside the Interpretations are concerned, suf-
ficiently protected by the municipal regulation
and provision. Such. we think, has been the
legislative view of this subject in this state
Hence there is no reason for presuming, in the
absence of an express declaration to that effect,
that the act now under c consideration was in
tended to apply to sales OF liquor in an incor-
porated town previously authorized to cense
such sales"
THE CITY's RIGHTS CLEAR.
This judicial construction Of the purposes of
this legislation by Justice Lumpkin is 30 con-
elusive that even we're there no proviso in the
act of Aug. H. 1891, exempting incorporated
cities from its operation, it is clear that the
citys control and regulation of oil bar
rooms aad the sale. regulation aid
power Of governing and directing taverns and
granting licenses for retailing liquor within
such jurisdctional limits, and of preserving
peace and good order therein on the Sabbath,
etc. +" are not affected by the act
We, tn r9fore, lind that the defendant. Fount-
ain, in selling liquor, not guilty OF any Of
Tense ere lted by the act and order that he be
discharged.