Silver v. Mayor, etc., of Sparta SILVER v. MAYOR, ETC., OF SPARTA. (Supreme Court of Georgia, April 21, 1899.) Licenses-Discrimination in Charges-Right to Question.*- The fact that a municipal corporation, after having granted to a particular person, for a specified sum, a license to sell spirituous liquors for a designated year, issued to another person a like license, covering the same period, for a smaller consideration, does not give to the former any right of action against the municipality; nor has he, as a dealer, any concern with the transaction between the corporate authorities and the second licensee, or, as such, any right, for any reason, to cancel or set aside any contract growing out of such transaction. This is true, although the transaction in question may have been unlawful, irregular, and have resulted in injury to the business of the first licensee. (Syllabus by the Court.) ERROR by plaintiff from Hancock county superior court. Affirmed. Chas. A. Picquet, for plaintiff in error. R. H. Lewis, for defendant in error. LITTLE, J. The plaintiff in error brought suit in the superior court of Hancock county against the mayor and aldermen of the town of Sparta, making, substantially, the following allegations: That the defendant is indebted to her in the sum of $12,500, damages, for that in December, 1896, one Mandel, who had been theretofore conducting the business of retailing spirituous liquors in the town of Sparta proposed to petitioner that the latter purchase a certain quantity of spirituous liquors, which would remain in his store after the expiration of his license, said Mandel express ing his intention to leave Sparta and go into business else *See notes at end of case. Silver v. Mayor, ete., of Sparta where; that prior to that time petitioner's husband had been engaged in the same business in said town, and, believing the statement of Mandel, an agent of petitioner accepted said proposition; that about the last of December petitioner was informed, by an officer of the corporation, that the corporation would not issue a license to one of the Mandels to sell liquor during the year 1897, that Mandel did not have the sum of $4,000, which was the amount the mayor and aldermen had fixed for said license, and that they would not accept an offer previously made by Mandel to convey to the mayor and aldermen a tract of land, and pay such sum in addition thereto as would aggregate $4,000 for said license, if petitioner would purchase a license from the corporation and pay the sum of $4,000 therefor, but that the corporation could not issue an exclusive license, as the same would be illegal; that, believing the representation of this officer, petitioner agreed to pay $4,000 for the license, stating to the officer that he would not receive the license, and pay that sum, or any other sum, if a license would be granted to Mandel authorizing him to retail liquor in said town in said. year of 1897; that this agreement was transmitted to the corporation by the officer referred to, and the corporation issued a license to petitioner in accordance with such agreement; that the mayor of the town of Sparta entertained bad feelings towards her husband, and desired to injure petitioner, and, after petitioner had purchased the license, the mayor proposed to Mandel that he would issue to him a license to sell liquor in said town for the year del would convey to the corporation a tract and parcel of land lying near said town, and in addition thereto that the corporation would pay Mandel $500 in cash; that the land was not worth more than $2,200; that this proposition was accepted for the purpose of defrauding and damaging petitioner; and the said mayor issued to Mandel a license to retail spirituous liquors in the town of Sparta for the year 1897, giving him equal privileges with those granted to petitioner, and on the 9th of January, 1897, the said Mandel 1897, if Man Silver v. Mayor, etc., of Sparta conveyed the tract of land, as agreed on, to said corporation. The land in question is described in the petition as contain ing 575 acres, more or less. Petitioner avers that the land was not worth more than $2,200, and had been repeatedly offered for $2,500, but a purchaser could not be found at that price, so that the corporation issued to Mandel a license for about $2,500 less than that paid by petitioner; that the ostensible consideration agreed on in the purchase of the land was $4,500, and was made that the transaction might appear fair upon its face. Petitioner alleges that the tract of land constitutes a farm; that it is used for farming purposes; that it is beyond the corporate limits of the town of Sparta; and petitioner says that the corporation did not have the power to purchase the farm, and enter into the vocation of farming, which it has done. Petitioner alleges that the deed of conveyance is void because it forms a part of a fraudulent scheme to defraud petitioner. It is further averred that the corporation did not have the power to issue a license save for cash, and that Mandel did not pay the corporation anything, but received from it the sum of $500. is further alleged that, if the corporation had not issued a license to Mandel, petitioner would have sold $30,000 worth of liquors in 1897, and realized a profit of $10,000, but, on account of the issuing of the license to Mandel, she was unable to sell $10,000 worth of liquors in said year, without any profit at all, whereby she was damaged $10,000. It is further alleged that the issuance of the license to Mandel was a discrimination against petitioner. The prayer is that the deed from Mandel to the corporation be declared void and canceled, and that petitioner have judgment for the sum of $12,500 damages against the corporation. By amendment it is alleged that the mayor and aldermen of Sparta exchanged. a license with Mandel for the tract of land described, and paid Mandel $500 in addition. The prayer in the petition is amended by praying that she have a judgment in the sum of $2,500, which amount she alleges was fraudulently and illegally obtained from her by the mayor and aldermen of MC CAS-16 Silver v. Mayor, etc., of Sparta Sparta. The defendant demurred to the petition on a number of grounds. The court sustained the demurrer, and dismissed the petition, and the plaintiff in error excepted. 1. This is a very remarkable case, and, if the facts averred in the petition be true, a singular and entire misconception of the legal nature of a license to retail spirituous liquors, as well of the powers and duties of a municipal corporation, exists in the minds of both parties to the case. In any view of the case, the demurrer to the petition was properly sustained. The eighteenth section of an act of the general assembly entitled "An act to alter and amend, revise and consolidate the several acts granting authority to the town of Sparta, and to confer additional powers upon the mayor and aldermen of said town, and for other purposes," provides that said mayor and aldermen shall have exclusive right to grant, or, in their discretion, refuse to grant, licenses to sell malt, spirituous, or intoxicating liquors within the corporate limits of said town, shall prescribe the terms on which license may be issued, and regulate and control the same. Acts 1893, p. 316. A "license" is defined to be the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or, at least, not by class to which the licensee belongs, and three leading ideas are involved in the definition. of a "license" under the liquor laws: First, it confers a special privilege, or franchise, upon selected persons, to pursue a calling not open to all; second, it legalizes acts which, if done without its protection, would be offenses against the statute; third, it is a privilege, as a part of a system of police regulation, and therein is distinguishable from taxa tion. Black, Intox. Liq. § 117. In the case of Board v. Barrie, 34 N. Y. 659, it is said: "These licenses to sell liquors are not contracts between the state and the persons licensed, giving the latter vested rights, protected on general principles, and by the constitution of the United States, against subsequent legislation, nor are they property, in any legal or constitutional sense. They have neither the quali ies of a contract nor of property, but are merely temporary Silver v. Mayor, etc., of Sparta permits to do what otherwise would be an offense against a general law. They form a portion of the internal police system of the state, are issued in the exercise of its police powers, and are subject to the direction of the state government, which may modify, revoke, or continue them, as it may deem fit." Again, in the case of Brown v. State, 82 Ga. 224, 7 S. E. 915, it was said by SIMMONS, J., who delivered the opinion of the court, in referring to a license granted to retail liquors, that "such a license is in no sense a contract by the state, county, or city with the person tak ing out the license. It is simply a permit granted by the authorities to do business under the license, and the license may be revoked by the legislature at any time." In the case of Sprayberry v. City of Atlanta, 87 Ga. 123, 13 S. E. 197, it was said by the same judge, in delivering the opinion of the court, that the issuing of a license to retail liquors is not a contract, but is a permission to the licensee to engage in the business under such restrictions, conditions, and limitations as may appear judicious to the authority issuing the license. We may, therefore, take it as established that, when a license was issued to the petitioner by the mayor and aldermen of the town of Sparta, she was thereby invested with no right of property, but that she was only given a permit to engage in the business of retailing spirituous liquors, subject to the control of the municipal authorities of said town, and such authorities had the exclusive right to fix the license fee at such a sum as in their judgment the best interest of the people of the town required. Having, then, a permit to engage in the business, and having done so according to the terms of the license, the petitioner had no right to complain if the constituted authorities, in the exercise of the same discretion which caused the license to be issued to her, granted a similar permit to another person. But it is said that the license was issued to Mandel through the mayor of the town, in consequence of a desire on the part of the latter to injure the petitioner. It may be replied that under the statute the mayor has no power to issue licenses, but such power is conferred alone upon the mayor and aldermen as an |