The Marietta journal. [volume] (Marietta, Ga.) 1866-1909, 1900-08-23
A MELANCE OF
LIVE TOPICS
Penned for Journal Readers
by a Local Scribe.
Our Local Option Law.


which is an intoxicant and thereby, as
is alleged, renders the whole statute
unconstitutional, is, il seems to me,
unsound. When Fulton county adopted
| prohibition under the general local OPP
ton law number of years ago the law
was attacked because it gave prefer
| ence to wines made in Fulton county
over those made elsewhere, allowing
| the former to be sold while the latter
was excluded, in violation, it was
| clsimed, of the constitution of the
United States. The case was decided
by Judge H. X. McCay of the United
States district court for the Northern
District OF Georgia, who is admitted to
have been one of the ablest judges that
ever sat on the supreme bench of Geor-
| gia, who held, according to we'll
| known principle OF law, that the local
option law of Georgia, on account of
the wine clause, was repugnant to the
federal constitution in so far only as
| preferences were made for the products
of one state over those of another. He
held that wines from other states could
be brought to Fulton county and sold
with the Georgia article while other
Intoxicating beverages were absolutely
forbidden. The bad part of the statute
could be pruned off, leaving the good
to stand. There was enough good in
the act to sustain it as whole. This
decision stood. In the Cobb county
case 1t seems to me that the only effect
of the wine clause is to make that part
imperative Gf wine selling is unconsti-
tutionaD leaving other intoxicants as
they now stand and bringing wine also
within the bounds of prohibition. (See
Cooley's Oonst Sim. III ,lS1)
Cooley's Constitutional Limitations
opp. 1858 contains great deal of
authority to sustain Judge McCay's
decision. Among other things this
authority declares: Where therefore
| part of statute is unconstitutional.
| that fact does not authorize the courts
to declare the remainder void also, I'M
less all the provisions are connected in
subject matter, depending on each
other, operating together for the same
purpose, or otherwise so connected in
meaning that it cannot be presumed
that the legislature would have passed
the one without the other. IT.,
when the unconstitutional part is
complete in itself. capable of being ex-
ecuted in accordance with the apparent
legislative intent, wholly independent
OF that which was rejected, it must be
sustained" The case of Brown VS.. the
State, 70 Ga, 473, paragraph 1, decision
rendered in 1887, think settles this
point. That act was similar to our
local option law, and was passed while
the act of 1877 was in existence. 1t
was constitutional apparently.
Since writing the above / Learn that
the objection to the Cobb county
statute is that it allows wine made in
Cobb county to be sold here, when
there was a general act in existence at
the time OF the passage of the special
law, which permitted Georgia made
wines to be sold in all counties of the
state regardless of local option laws.
The object Of the general law (passed
in 1870 was to encourage the manufac.
ture and use of domestic wines which
were considered harmless There are
numbers of decisions which show that
special local option laws to be uncon.
stitutional, because they prohibit Geor.
gia made wines TO be sold in certain
counties in defiance of the present gen.
eral law referred to, allowing their sale
therein. The Cobb county law differs
from these in that Cobb county wine is
allowed to be sold here, thus carrying
cut the legislative intention of the act
Of 1877. Our act is simply declaratory
OF that act so far as wine is concerned
and is really to this extent not a new
act providing for a subject matter fol
which provision has already been made
by general law.
In lob Ga, p. 38, the majority Of the
court held that a special statute thai
forbade the sale Of all wines was voiC
; because 1T attempted an entirely new
policy as to the sale ofdomestic wines
and that ''it cannot be assumed tina
I the legislature would have been willin,
4 to enact the statute if its effect woulC
e have been to establish scheme of par
V tial prohibition" Cobb's act did no
1 attempt an entirely new policy as t
e the sale of domestic vines" becaus
$ it allows Cobb county wines to be soil
] L