Company interposed a demurrer to the second count, on the ground that it "does not allege a crime under the laws of this state, there being no law of force prohibiting, by high license or otherwise, the sale of liquors in Bartow county." The court overruled the demurrer, and the defendants excepted to that judgment. The court instructed the jury that there was no evidence that any spirituous, malt, or intoxicating liquors had been sold in Bartow county, and directed a verdict for the defendants on the first count in the indictment. The defendants were convicted on the second count of the indictment, and their motion for a new trial was overruled.

The controlling question in this case is made by the demurrer to the second count of the indictment. This count, as before stated, charged the defendants with a violation of section 428 of the Penal Code of 1895, as amended by the act of 1897. The offense is set forth in the language of the statute; it being alleged that W. F. Baker, Randolph Rose, and R. M. Rose Company, in Bartow county on the 1st day of January, 1907, did "sell, contract to sell, take orders for, and solicit, personally and by agent, the sale of spirituous, malt, and intoxicating liquors in said county of Bartow, where the sale of such liquors is prohibited by law, high license, or otherwise, said R. M. Rose Company being then and there a corporation doing business in this state, and said offense then and there having been committed within the corporate limits of the city of Cartersville, in the said county of Bartow." Was the sale of spirituous, malt, or intoxicating liquors prohibited by law, high license, or otherwise, in Bartow county at the time when the offense charged was alleged to have been committed? If such sale was not prohibited in that county, it follows that the conviction, whatever may have been the facts in the case, was unlawful, and must be set aside. By its express terms, section 428 of the Penal Code of 1895, before and since the amendatory act of 1897, makes it an offense, personally or by agent, to sell, contract to sell, take orders for, and solicit the sale of spirituous, malt, or intoxicating liquors, only in those counties in this state where the sale of such liquors is prohibited by law. Justice Cobb, in the case of Barker v. State, 117 Ga. 433, 43 S. E. 746, gives the legislative intent in the enactment of section 428 as follows: "The manifest purpose of this law is to prevent the sale of intoxicating liquors in a prohibition county, town, or district." See, in the same connection, Loeb v. State, 115 Ga. 241, 41 S. E. 575 (2). The Supreme Court in Strauss v. Mayor of Waycross, 97 Ga. 476, 25 S. E. 329, says: "Prior to the passage of the act of December 18, 1893 [now section 428 of the Penal Code of 1895], soliciting orders for the sale of spirituous, malt, or other intoxicating liquors, in any 'prohibi

tion' county in this state was not indictable under any criminal statute of Georgia, but was for the first time made a state offense by the passage of that act." Section 428 of the Penal Code of 1895 was amended by the act of 1897, by inserting after the word "sell," in the second line, the words "contract to sell, take orders for." It is clear that the Legislature of 1897 thought that this section applied only to those counties wherein the sale of liquor was then prohibited by law; for the caption of the amendatory act expressly restricted its application to "where the sale [of such liquors] is now prohibited by law." In the case of Williams v. State, 107 Ga. 694, 33 S. E. 642, the Supreme Court holds that "the purpose of the act [section 428 of the Penal Code of 1895, as amended by the act of December 9, 1897] is to prevent whisky dealers from selling or contracting to sell, taking orders for, or soliciting, personally or by agent, the sale of intoxicating liquors in a 'dry' county, town, or district." The use of the word "dry" was intended to designate those counties where the sale of liquors is prohibited by law. It is unnecessary to multiply authorities on this point, for it cannot be doubted that the plain, manifest purpose of section 428, as amended, was to protect from the liquor traffic those counties wherein the sale of liquors was prohibited by law, and that this section is applicable only in those counties where the sale is prohibited. It therefore follows that, if there was no valid law which prohibited the sale of spirituous, malt, and intoxicating liquors in the county of Bartow at the time when the alleged offense was committed, there could have been no violation of section 428, as amended by the act of 1897, in that county; and an indictment based on that statute was invalid.

So the question recurs, was the sale of spirituous, malt, and intoxicating liquors prohibited by law, high license, or otherwise, in Bartow county on January 1, 1907, or at any time prior to that date, within the statute of limitations? Let us review the legislation on the subject of the liquor question, as applicable to Bartow county. On February 26, 1875 (Acts 1875, p. 338), a local act was passed, permitting an election in Bartow county to determine the question "whether or not spirituous, vinous, or malt liquors shall be sold, bartered, or in any way disposed of for a valuable consideration, in quantities less than one gallon." No election was ever held under this act, and it never became operative. On February 21, 1876 (Acts 1876, p. 328), this act of 1875 was amended, but there was no election under the act as amended, and it never became effective. On December 2, 1884, a local act was passed entitled "An act to submit to the qualified voters of Bartow county the question of the sale and furnishing of intoxicating, alcoholic, spirituous, vinous, or malt liq

uors in said county, and to prohibit the same from being sold or furnished after said election, if a majority of those voting shall so determine, and to provide penalties for such sale and furnishing, and for other purposes." This act was amended October 7, 1885, forbidding the sale of domestic wines at public places, and in quantities less than one quart. Acts of 1884-85, p. 541. An election was held under this act, and it received the number of votes necessary for its adoption, and became operative. On November 6, 1901, the Supreme Court, in the case of Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913, following the principle ruled in Papworth v. State, 103 Ga. 36, 31 S. E. 402, and subsequent cases, declared that the special local act of 1884 for Bartow county was in conflict with the general domestic wine act of February 27, 1887, and was violative of that clause of the Constitution which prohibits special legislation in any case for which provision has been made by an existing general law. It was further decided in the same case that the general statute making it an offense to retail or sell intoxicating liquor without li cense was operative in Bartow county. Since the decision of the Supreme Court declaring the special local act of 1884-85 unconstitutional, this general law is the only one that has been of force in Bartow county. This law does not prohibit the sale of liquor. It permits the sale under a license granted by the proper county authorities. This is a regulation, and not a prohibition.

It seems perfectly clear to us that it would be a legal paradox and a logical absurdity to hold that section 431 of the Penal Code of 1895, which regulates, and section 428, which prohibits, can be effective and operative at the same time in the same county or locality. We do not understand the able Solicitor General to combat the correctness of this position. He claims, on the contrary, that section 428 does apply in Bartow county, because in that county the sale of liquor is prohibited by law. He admits that such sale is not prohibited by high license, for high license does not necessarily prohibit. Neither does he claim that there is in that county any special prohibition law, or that the people of the county have prohibited the sale under the provisions of the general local option law. He supports his contention that the sale is prohibited in Bartow county by the word "otherwise," used in the act of 1897, "prohibited by law, high license, or otherwise." He contends that the act of 1874 (Acts 1874, p. 330), creating the board of county commissioners for Bartow county, gives them exclusive jurisdiction to issue licenses for the sale of spirituous liquors in that county; that, having exclusive jurisdiction, the commissioners can refuse or grant licenses at their election; and that the fact that no license has been granted shows that the policy of the county is not to legalize the sale of liquors, and therefore the sale of

spirituous liquors in that county is "otherwise prohibited by law," the "otherwise prohibited by law" consisting in the fact that the county commissioners have not granted a license to sell in the county. The syllogism of the Solicitor General proceeds in this wise: Exclusive jurisdiction is given to the county commissioners of Bartow county to grant or to refuse licenses for the sale of spirituous liquors in that county. They have not granted a license. Therefore the sale of liquor is prohibited by law. The conclusion is a palpable non sequitur from the premise. There may be many reasons for not having issued a license. No one may have applied, or no one acceptable to the commissioners may have applied. Questions of policy or expediency may have induced the commissioners to refuse those who applied. But the power to license existed, and thig precluded the possibility of prohibition. The commissioners were not authorized by law to prohibit the sale of spirituous liquors, but only to regulate the sale thereof. Regulation is absolutely contradictory of prohibition. The former can never exist where the latter prevails, or vice versa. Even regulation that places the license so high that it amounts to practical prohibition does not, as a matter of law, prohibit. Glover v. State, 126 Ga. 594, 55 S. E. 592. According to the Supreme Court, in Griffin v. Eaves, supra, the only penal law applicable to the sale of liquor in Bartow county is that contained in section 431 of the Penal Code of 1895, and this law could not be applicable in that county if the sale of liquor was prohibited. The truth of the proposition is self-evident, and argument seems superfluous.

The words "otherwise prohibited," relied on by the state, really mean nothing in this statute. When the Legislature used the words "prohibited by law," it exhausted the subject, and the addition of the words "high license or otherwise" was "wasteful and ridiculous excess." These general words are sometimes added to specific enumeration in statutes out of abundance of caution, but they usually mean nothing. Certainly such words must be "restricted to the same genus as the things enumerated," and the use of the word "otherwise," following the words "prohibited by law," meant that the "otherwise" prohibition of the sale of liquor was to be a legal prohibition, that is, prohibited by the law of high license, or otherwise prohibited by law. But we do not think this general word means anything in this statute. Whatever it was intended to mean, it could not by any rule of logic give to the failure of the commissioners to grant licenses the force and effect of a positive enactment prohibiting the sale. The word "prohibit” is an active, transitive verb. As defined by the Standard Dictionary, it means "to forbid, especially by authority or legal enactment; interdict; as, to prohibit liquor selling, or a person from selling liquor." The word "pro

hibit," in its legal sense, implies some legislative enactment forbidding something. "The laws of England, from the early Plantagenets, sternly prohibited the conversion of malt into alcohol." "Prohibition," in the United States, specifically means "the forbidding by legislative enactment of the manufacture and sale of alcoholic liquors for use as beverage." Giving, therefore, to the word "prohibited" its ordinary signification and its technical meaning, as applied to the particular subject-matter of the sale of spirituous liquors, it must involve some positive act done by authority. If the position of the Solicitor General is correct, there is no necessity for any general prohibition law in Georgia, and the general local option law was an entirely useless piece of legislation. All that is necessary to secure prohibition in a county is to elect county officials who will arbitrarily and at all times refuse to grant licenses. This would put it in the power of one or more county officials to give or refuse prohibition to the people. This great question in which all the people are so much interested would not be under the control of positive statute, but of the caprice or honesty of a few individuals. If such were the law, a county might be "wet" one day and "dry" the next. If the people of Bartow county want the traffic of spirituous liquors prohibited in their county, they must avail themselves of the provisions of the general local option law of the state. The Supreme Court has repeatedly held that no special local law will give the protection, and surely the failure to grant licenses by the commissioners will not furnish such protection, for, at any time, the commissioners could change their minds and issue licenses.

We conclude that the sale of spirituous, malt, or intoxicating liquors was not prohibited by law, prohibited by high license, or prohibited otherwise, in Bartow county, when the plaintiffs in error were charged with a violation of section 428 of the Penal Code of 1895, as amended by the act of 1897, and that the demurrer to the indictment on this ground should have been sustained. Let the judgment of the Superior court, refusing to grant a new trial, be reversed, the verdict in both cases set aside, and the indictment quashed. The petition of the Solicitor General to review the decision of the Supreme Court in the case of Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913, is refused. The principle upon which that case was decided was approved by the Supreme Court in several cases before and since the decision of that case. As late as the case of Glover v. State, 126 Ga. 607, 55 S. E. 592, it was cited and approved. In the case of Edwards v. State, 123 Ga. 544, 51 S. E. 630, the Supreme Court cites with approval the principle of the Papworth Case, and all subsequent cases involvIng the same question. In view of these repeated rulings of the Supreme Court, this court is not of the opinion that the question

is one of so much doubt that it should be referred to the Supreme Court for review. Judgment reversed.

CUNNINGHAM v. STATE. (No. 167.) (Court of Appeals of Georgia. April 25, 1907.) CRIMINAL LAW REVIEW DISPOSITION OF CAUSE.

The constitutionality of the act of December 20, 1898 (Acts 1898, p. 60), amending section 341 of the Penal Code of 1895, by inserting therein, after the word "any," and before the word "pistol," the words "kind of metal knucks," being the only question involved in this case, and the question having been certified to the Supreme Court, and that court having held adversely to the contention of the plaintiff in error, and that said act is not unconstitutional, an affirmance of the judgment of the trial court, in overruling the demurrer based upon the contention that said amendatory act was unconstitutional, must result.

(Syllabus by the Court.)

Error from City Court of Bainbridge; Harrell, Judge.

Will Cunningham was convicted of a misdemeanor, and brings error. Affirmed.

For opinion of Supreme Court on certified questions, see 57 S. E. 90.

W. D. Sheffield, for plaintiff in error.
RUSSELL, J. Judgment affirmed.

KIMBROUGH v. SMITH. (Supreme Court of Georgia. July 12, 1907.) WILLS-CONSTRUCTION-DEVISE OF LIFE ES

TATE.

A devise of a life estate, made in distinct terms in a prior item, will not be enlarged into a fee-simple estate by the general language of a subsequent item, where the language and the general context of the will do not clearly and plainly indicate such to be the testator's purpose and intent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1431.]

(Syllabus by the Court.)

Error from Superior Court, Troup County; R. W. Freeman, Judge.

Action by S. A. Smith, administrator, against H. C. Kimbrough. Judgment for plaintiff. Defendant brings error. Affirmed.

S. A. Smith, as administrator de bonis non cum testamento annexo of John A. Smith, filed his complaint for land against Kimbrough, administrator of Thomas Wesley Smith, and the case was submitted to the judge without a jury under an agreed statement of facts. In accordance with the terms of this agreement he subsequently rendered his decision, which was in favor of the plaintiff, and the defendant filed the present bill of exceptions complaining of that decision. The agreed statement of facts shows that John A. Smith died in 1880, testate, and that his sons, S. P. and Thomas Wesley, who were named as executors in the will, duly qualified and administered the estate, and were discharged in 1883. The third item of

the will is as follows: "I give and bequeath to my beloved wife, Mary Smith, and to my son Thomas Wesley Smith, jointly, the following lots and fractions of lots of land [being the land sued for in the present case]. The lands with their appurtenances, herein mentioned, are to be held, and the rents or profits thereof enjoyed, jointly by them. If one dies before the other, the survivor shall have the share of the one who dies, and at the death of both said property shall revert to my estate, to be equally divided among my heirs at law, at that time in life; and, as the mills situated on the lands thus disposed of require repairs, I give my wife and son Thos. Wesley five hundred dollars for the purpose of making such repairs." The fourth, sixth, and seventh items of the will make bequests to his other children of lands therein specified; the estate in each instance being without any limitation. Item 5 gives certain land to his sister for life, with remainder to a named daughter. Item 8 sets out that "in making the above and foregoing bequests it is distinctly to be understood that in every instance the property so bequeathed is to go to the legatees mentioned and their lawful heirs, and in no instance to be subject to the debts of said legatees, and the same ruling to apply to the bequests that are to be made in the items that follow, and I value the lands thus bequeathed as follows, to wit: Those to my wife and Thos. Wesley jointly, $6,000; to Nannie White, $3,500; to Sarah E. Cleveland, $3,942 [these two being daughters]; and to Samuel P. Smith, at $3.805." Item 9 provides that "all the balance of my property, of each and every description, whenever and whereever it may be or consist of, I desire and direct that the same may be divided and distributed among my heirs at law hereinbefore mentioned in the foregoing items, so that the distribution may be equal, taking as a basis upon which to estimate the values I have placed on the realty bequeathed, counting my wife and Thos. Wesley as two shares; and it is to be distinctly understood that the bequest to my wife is in lieu of dower." The residue of the estate immediately after the death of the testator was appraised at $35,000. These legacies were assented to, and the legatees took possession of the lands bequeathed to them. Thomas Wesley was born in 1832, and from his childhood had lived with his father and mother, never having married, and was so living at the time the will was made, and at testator's death. The other children had married and with their families were living apart from the testator. Thomas Wesley continued to live with his mother, unmarried, till her death in 1884, but later, in 1894, married. He continued to live upon the land devised to himself and mother after her death, and till his death, which occurred on June 13, 1904. He left surviving him a

wife and one child, who continued to live on the place after his death, and this suit is brought by the administrator de bonis non of his father's estate, against the administrator of Thomas Wesley Smith, to recover this land.

F. M. Longley, for plaintiff in error. J. R. Terrell, for defendant in error.

EVANS, J. The solution of the case presented by this record depends upon the character of the estate, whether fee simple or for life only, which Thomas Wesley Smith took in the lands devised in the third item of his father's will. If no other considerations entered into the construction of this item beyond defining the plain and unambiguous language of the testator according to its obvious legal effect, no difficulty would be experienced in declaring the nature of the estate therein created. With almost technical precision the testator devised to his wife and son Thomas Wesley an estate for their joint lives, with survivorship, and after the death of the survivor a reversion of the land devised to his estate, to be distributed among his heirs at law living at the time of the death of the survivor. But the plaintiff in error insists that the eighth item of the will is irreconcilable with item 3, and that the life estate created in the third item became absolute under the eighth item, and vested in Thomas Wesley Smith an absolute fee-simple estate upon the death of his mother. Civ. Code 1895, § 3346, provides that, "where there are inconsistent provisions in the same will, the latter must prevail." Before a posterior provision shall be given the effect of nullifying a devise previously made in the will, the conflict between the two provisions must be irreconcilable. A subsequent provision which diminishes a precedent gift, as by cutting down to a life estate a prior devise, is not so far conflicting and irreconcilable with that gift as to be in a legal sense repugnant thereto. Broach v. Kitchens, 23 Ga. 515; Sheftall v. Roberts, 30 Ga. 453; Vaughn v. Howard, 75 Ga. 285. In these cases the language of the posterior clause reducing the estate was in express terms, and not in general language. When the words of the will in the first instance distinctly indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provision which is inferential, and which is not equally as distinct as the former. 30 Am. & Eng. Enc. L. (2d Ed.) 687; 1 Jarman on Wills, *438. The reason underlying this principle is equally applicable to the converse of the proposition, to wit, that, where the prior devise of an estate less than a fee is made in distinct terms, it will not be enlarged into a fee by the general language of a subsequent item, unless the language and general context clearly and unmistakably discloses such to be the testator's purpose and intent. It is familiar law that the whole

will is to be taken together, and operation to be given to every part of it, if possible, and no part should ever be rejected because of conflict with another part, except where the repugnancy is so palpable that both items can not be given effect. The language relied on in this case to create the repugnancy is the statement in the eighth item that the property bequeathed in the previous items "is to go to the legatees mentioned and their lawful heirs, and in no instance to be subject to the debts of said legatees." It is quite evident that the testator was of the opinion, from the language he used, that he could devise property to his children, and at the same time exempt it from liability to their debts. The eighth item does not remotely suggest the testator's intent to modify or annul the provisions as to survivorship between his wife and Thomas Wesley, and there could be no survivorship except that a life estate was created. We would be doing violence to the clear and distinct purpose manifested by the testator in the disposition of the land devised in the third item to hold that the clear and distinct gift of a life estate was to be converted into a fee-simple estate by the general language employed in the eighth item of his will.

Plaintiff in error further contends that the testator discloses an intention, in the eighth and ninth items of his will, to make an equal distribution among his heirs at law; that the real purpose of the testator was to divide his estate into five equal parts, giving two to his wife and Thomas Wesley, and to the three other children each an equal share. We gather from the whole will that the testamentary scheme did not comprehend equality in the estates devised. A construction which would enlarge the estate granted to Thomas Wesley in the third item into a fee simple would destroy that equality for which the plaintiff in error so earnestly contends, since Thomas Wesley, if he should survive his mother, would be given a much larger share than would pass to the other children under the terms of the will. It would seem that the testator had more in mind equality in present interest than equality of the estate devised to his several children. In his estimate of the land devised to the different legatees he values the land without reference to the estate created therein, and for the purpose of making an equal division of the residuum on the basis of such valuation. The will itself is demonstrative that this was the general testamentary scheme, and presents no ambiguity. even if we were of the opinion that the will raised an ambiguity, the attendant circumstances of the testator and his family, appearing in the agreed statement of facts, illustrates that the construction we place up

But,

The precise date of

on it is the correct one. the will does not appear in the record, but it was probated in 1880. At that time Thomas Wesley was 48 years of age, living with his mother, and unmarried. The other children were married and living apart from the testator at the time of his death. It is easy to infer from these circumstances that the testator did not believe that his son Thomas Wesley would ever marry, and he desired the land specifically devised to go to his lineal heirs upon the death of the survivor named in the third item of his will. The residuum of the estate was appraised at $35.000, approximately double the value of the land specifically devised. The record is silent as to whether this residuum consisted of personalty or realty. Both his wife and Thomas Wesley took their shares of this residuum without limitation. While we are of the opinion that the will is unambiguous, we advert to these attendant circumstances of the testator and his family, which were before the trial judge, only to show that the construction which we have given is consonant with those circumstances at the time the will was executed. The case was tried by the judge without a jury, by consent, upon an agreed statement of facts, and we agree in the judgment of the trial judge that Thomas Wesley Smith's estate in the lands devised in the third item of the will determined upon his death.

Judgment affirmed. All the Justices con

cur.

GEORGIA RAILROAD & BANKING CO. v. HEARD.

(Supreme Court of Georgia. July 10, 1907.) 1. APPEAL-REVIEW-OBJECTIONS WAIVED.

Only the general grounds of the motion for new trial were referred to or argued in the brief of the plaintiff in error. The special assignments of error which were not referred to in the brief will be treated as abandoned.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 4256, 4262.] 2. SAME EVIDENCE.

The evidence was sufficient to uphold the verdict.

(Syllabus by the Court.)

Error from Superior Court, Greene County; H. G. Lewis, Judge.

Action by Columbus Heard against the Georgia Railroad & Banking Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Jos. B. & Bryan Cumming and Jas. B. & Noel P. Park, for plaintiff in error. Miles W. Lewis, for defendant in error.

EVANS, J. Judgment affirmed. All the Justices concur.