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only be guilty because it is held responsible for the acts of its agents, and, in case of furnishing liquor to a minor, for permission given by its agent, for the sale or furnishing of the liquors in question. There was no evidence introduced by the state in this case which showed that the agent knew of the delivery, consented to it, or permitted it. The only witness who testified that the agent was present (taking his testimony to be the truth) also testified that there was nothing to attract the attention of the agent to the delivery. None of the parties interested in the whisky spoke to him, and, if present, he was absorbed in the consideration of other business. The proof was uncontradicted that the boy who delivered the whisky was not employed by the express company. If the state had shown that the agent was looking at the boy, or told the boy to deliver the whisky, or was silently standing by and made no protest when he saw the boy delivering the same, the jury might have been authorized to consider the act of the boy as the act of the agent, and then the act of the agent would have been the act of the company. But the state's own testimony negatives the idea that the agent either knew of, consented to, or permitted the delivery in this

case.

Judgment reversed.

NEWSOME v. STATE. (No. 426.) (Court of Appeals of Georgia.

May 9, 1907.) 1. INTOXICATING LIQUORS-FURNISHING LIQUOR TO MINOR.

signed by himself, stating as follows: 'Enclosed find money order for $3.50, for which please send me two quarts of Montreal malt and two quarts of your best 75 cent rye.' The said Joe Davis was then and there at Nashville, Berrien county, Ga. W. D. Newsome was then and there a licensed liquor dealer in the city of Valdosta, Lowndes county, Ga. The said W. D. Newsome, upon receipt of said order, immediately sent by express, via Southern Express Company, to the said Joe Davis, at Nashville, Ga., the whiskies and liquors ordered, and the Southern Express Company received the same at Valdosta, in Lowndes county Ga., and transported the same to Nashville, Ga., in Berrien county, where R. L. Ferguson, as the agent of the Southern Express Company at Nashville, Ga., Berrien county, delivered the same then and there to the said Joe Davis. The said Joe Davis was a minor under 21 years of age. The liquors as aforesaid, as stated, were delivered to the Southern Express Company in Lowndes county, Ga., by the said W. D. Newsome, and the Southern Express Company, a common carrier, conveyed the same, as stated, to Nashville, Ga., the express being paid by the minor, who was the consignee (Joe Davis), at Nashville, Ga.; the said W. D. Newsome not having first obtained the written authority, from either a parent or guardian of the said Joe Davis, to sell or furnish any liquors to the said Joe Davis. That said W. D. Newsome, after receiving the order signed by Joe Davis as aforesaid, without inquiry as to whether the said Joe Davis was or was not a minor, shipped the liquor as stated. The particular whisky shipped had not, at the time the order was received, been separated from the general stock of the said W. D. Newsome in his saloon, at Valdosta, Lowndes county, Ga., but was separated therefrom after the re

A liquor dealer, who in one county receives by mail an order for intoxicating liquor from a minor in another county, and who fills the order by shipping the liquor by express to the latter County, where it is delivered to the minor, may be indicted and punished in either of the counties named, for a violation of Pen. Code 1895, §ceipt of said order and its acceptance, and 444.

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Error from Superior Court, Berrien County; Mitchell, Judge.

W. D. Newsome was convicted of furnishing intoxicating liquors to a minor, and bring. error. Affirmed.

The plaintiff in error was indicted for causing intoxicating liquors to be furnished to a minor. He pleaded not guilty, and his case was tried before the court without the intervention of a jury upon the following agreed statement of facts: "On January 31, 1907, one Joe Davis, at Nashville, Ga., sent by mail to W. D. Newsome, at Valdosta, Ga., a letter,

delivered to the carrier, the Southern Express Company, as aforesaid. The liquors furnished were intoxicating. The delivery to the carrier, as stated, was for the purpose of shipment under the usual contract specifying its conveyance and delivery to the consignee at Nashville, Berrien county, Ga. It was contemplated by the parties, at the time the order was sent and received and accepted, that the whisky was to be sent by express, as stated." He was adjudged guilty, and excepted.

Cranford & Wilcox, for plaintiff in error. W. E. Thomas, Sol. Gen., for the State.

POWELL, J. (after stating the foregoing facts). Pen. Code 1895, § 444, makes it criminal for "any person, by himself or another," to "sell, or cause to be sold, or furnished," to any minor, any spirituous, malt, or intoxicating liquors, unless such person shall first obtain the written consent of the minor's parent or guardian. In this state, as in most of the states, this statute has been broadly

and liberally construed in favor of the protection thus afforded against the obtaining of intoxicating liquors by minors. The word "sell," appearing in the statute, is, of course, not to be taken in the strict technical sense of the word. One of the elements contained in the definition of a "sale," as this term is ordinarily used in laws and court language, is competent parties. A minor not being a competent party to obtain liquor, there can be no sale to him in the technical sense. The statute, therefore, makes punishable those acts which would amount to a sale of the liquors if the minor were a competent contracting party. If a liquor dealer in county A receive an order for whisky from a lawful customer in county B, and from his store in county A ship the whisky by a common carrier to the purchaser in county B, sale has taken place in county A. If, under the same circumstances, the order be sent by an unlawful customer-a minor-and the goods be shipped, no sale, in the strict sense of the word, has taken place, but the quasi sale contemplated by Pen. Code 1895, § 444, has been consummated at the place where the delivery was made to the carrier; hence the liquor dealer may be indicted in that county.

But the sale or quasi sale is not the only offense under this statute. To furnish liquors or cause them to be furnished is also criminal. This offense is not complete until the minor receives possession of the liquors. If a minor in De Kalb county send a private person into Fulton county to buy liquor for him, and this private person disclose to the dealer the fact that he desires the liquor for a minor, and the dealer send the liquor by this private person, who delivers it to the minor in De Kalb county, the dealer may be indicted in Fulton county for the quasi sale. Both the dealer and the private person through whom the delivery was effectuated may be indicted in De Kalb county for furnishing the liquor and causing it to be furnished. Likewise where delivery is made through a common carrier. The purpose, the unbroken judicial construction, in fact, the very language, of this statute, distinguishes the case at bar from the line of cases holding that in ordinary sales of intoxicating liquors, as well as of other commodities, the sale is complete at the place where delivery is made to the carrier. Those cases (e. g., Dunn v. State, 82 Ga. 27, 8 S. E. 806, 3 L. R. A. 199; Southern Express Co. v. State, 107 Ga. 670, 33 S. E. 637, 46 L. R. A. 417, 73 Am. St. Rep. 146, and cases cited therein) all proceed upon the theory that the common carrier is the agent of the consignee to receive for him the goods and transport them, and therefore de livery to the carrier is delivery to the consignee. Watkins v. Paine, 57 Ga. 50.

If it ac

lic agent for unlawful purposes. cepts for transportation liquor consigned from a dealer to a minor, it carries it, not as the minor's property, for the law will not let the title pass, but as the dealer's. Burnett v. State, 92 Ga. 474, 17 S. E. 858; So. Ex. Co. v. State, 107 Ga. 674, 33 S. E. 637, 46 L. R. A. 417, 73 Am. St. Rep. 146. The carrier cannot by contract, express or implied, nor by virtue of any public duty, be come or agree to become the minor's agent to accept for him delivery of a thing which the law forbids that he should receive. This principle existing in the law of agency is too universally recognized to require citation of authority. The two cases just cited above make it plain that there is no legal duty on the carrier to receive and transport the liquor in such cases; that, on the contrary, the law forbids it; and, if the carrier delivers the liquor to the minor, he and the dealer are both principals in the crime of furnishing and causing to be furnished liquor to a minor. So. Ex. Co. v. State, 1 Ga. App: 700, 58 S. E. 67. Since the crime of furnishing becomes complete in the county where the minor actually obtains personal possession of the liquor, venue may be laid there.

2. That a defendant who furnishes liquor to a minor happens to be ignorant of the minority is no excuse. Most states recognize no exceptions to this rule. 17 Am. & Eng. Enc. Law (2d Ed.) 335. Georgia is somewhat more liberal, and allows the ac cused to show, in defense, that after honest inquiry and the exercise of due diligence he bona fide believed, and was justified in believing, that the person to whom the liquor was furnished was at the time of full age. Certainly a dealer who fills an order without inquiry is not within the protection of this exception. Loeb v. State, 75 Ga. 258; Harkey v. State, 89 Ga. 478, 15 S. E. 552; Burnett v. State, 92 Ga. 474, 17 S. E. 858; Blodgett v. State, 97 Ga. 351, 23 S. E. 830. Judgment affirmed.

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THORITIES.

There is nothing in the statutes or public policy of this state which prohibits the proper If the sale be lawful at the place where county authorities from making a contract with the goods are tendered to the carrier, it canthe owner of a mill site, near which a public highway, including a bridge, is to be erected, not refuse them. It is a public agent for whereby the mill owner deeds to the county the such purposes. But the carrier is not a pub-right of way for the highway and contributes

to the erection of the bridge on condition that e shall have the right to join his milldam to the piers of the bridge and use them as bulkheads, unless such an arrangement would manifestly endanger the safety or convenience of the public.

3. SAME.

The jurisdiction of determining whether such an arrangement will be detrimental to the good of the public, or of the county in its corporate capacity, is primarily vested in the county authorities having in charge the subjectmatter of roads and bridges.

(Syllabus by the Court.)

Error from City Court of Floyd County; Hamilton, Judge.

Action by Floyd county against one Wright. Judgment for plaintiff, and defendant brings error, and plaintiff files a cross-bill. Affirmed on main bill, and cross-bill dismissed. Seaborn & Barry Wright and W. M. Henry, for plaintiff in error. Junius F. Hillyer, for defendant in error.

POWELL, J. On May 16, 1905, by a written contract made between Wright and Floyd county, through its county commissioners, and reciting that said Wright is the owner of the lands on both sides of the Armuchee creek at the old Jones mill in said county, including the mill and water rights, and the county is the owner of a bridge across the creek, at or near said mill, on the Dalton publie road; that, it being necessary to repair said bridge by substituting two stone or concrete piers for the wooden bents now in use, one pier to be located at the north end and the other at the south end of said bridge, and Wright desiring to build his milldam and race anew at or near said bridge and to use said bridge for bulkheads or stays for the same it was agreed that Wright, at his expense, would build one of the piers, and the county, at its expense, the other, and that Wright should also build, at his expense, any additional concrete or stone pier or work which might in the discretion of either party be required to properly adjust the contemplated dam and race to the piers and to their use as safe and permanent supports to the bridge; all the work to be done according to the county's plans and specifications and subject to its approval. As a further consideration it is recited that the said Wright "hereby sells and forever quitclaims to [the county] the right to keep and maintain said bridge where now located, and to rebuild or replace the same as often as may be necessary in the future; also the right of way for a public road 30 feet wide on both sides of said creek, and along the line of the road leading through his land to and from said bridge." On the county's part, the contract states that it "agrees to allow Wright the privilege to construct his milldam at or near said bridge, and to make use of the piers before mentioned, as bulkheads or stays to his dam, the work to be done, as before stated, under the direction and subject to the ap

proval of the county authorities," and that "this instrument shall operate as a deed of conveyance as far as applicable." With the consent of Wright, and at his instance, the county, after building the pier which they were to build, also constructed the one which Wright was to erect. The cost of building the second pier was $517.10; and for this sum the county brought suit against Wright. The latter defended the suit on the ground that the county did not have the power to convey, or to grant to him the right to use, the portion of the bridge or public highway for the purpose set out in the contract, and that, therefore, there was no consideration for the agreement on his part to pay for building a portion of the work; it being necessary for the county to do the same in order to build the bridge. The court awarded judgment in favor of the county, and Wright excepts.

1. The whole case turns upon the one question as to whether the agreement between the parties is within the contractual capacity of the county commissioners. Wright is perfectly willing to pay the amount sued for if the county can grant him the benefits contemplated in the contract, and is unwilling to pay it unless he can get them. In fact, we gather from the argument that the suit has been brought and maintained for the purpose of settling this legal question before further money is spent by Wright in pursuance of the contemplated work necessary to the completion of the dam. The county, in the brief of its able counsel, thus presents its contentions: "That the board of commissioners had jurisdiction of the subject-matter of the contract; that its discretion was practically unlimited; that such a broad discretion includes the right to agree upon price, when to be paid, how and with what to be paid, whether with draft on the treasurer or by transfer of property, or, as in this case, by the granting of a special license; that there is no prohibition against the board granting licenses on public easements, but that it is consistent with the broad discretion granted them, and agrees with the rights of individuals, as well as the rights of the public, and is in accord with the spirit of the law, as well as the rulings of our courts; that this right applies incontestibly when the grant of a license is to the owner of the fee; further, that the record discloses that the conveyance of the right and easement specified in the contract, from the plaintiff in error to the defendant in error, was necessary to secure the public right thereto, and that this fact gives to the transaction a different character from that insisted on by the plaintiff in error." On the other hand, the distinguished ex-judge of the superior courts who appeared for Mr. Wright asserts the propositions that county authorities have no contractual powers, except such as are expressly conferred by law; that their powers are enumerated, and are limited by the enumeration: that

nowhere has any law, either general or special, ever given the board of county commissioners of Floyd county any power to make such a contract as that sued on; that the result of the contract is to create a relation in the nature of a partnership between the public and a private individual, and to grant to the latter, for purely private purposes, a use and an easement in a public bridge such as is not enjoyed by other individuals; that the use and easement would, by operation of universally known natural laws, inevitably and constantly tend to injure and destroy the bridge and to impair its usefulness for public travel, and thereby to create a public nui

sance.

By the state Constitution (article 11, § 1, par. 1; Civ. Code 1895, § 5924) "each county shall be a body corporate, with such powers and limitations as may be prescribed by law"; and by article 6, § 19, par. 1 (Civ. Code 1895, § 5879), "the General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties." The Constitution of 1868 contained a similar provision as to county commissioners. It has been held, under these sections, that neither counties nor county commissioners possess any powers unless expressly conferred by, or fairly to be implied from, such statutes as may be passed in relation thereto. Albany Bottling Co. v. Watson, 103 Ga. 503, 30 S. E. 270. It is therefore necessary to consider what statutes have been passed upon this subject. By act of December 13, 1871 (Laws Ga. 1871-72, p. 225), the board of county commissioners of Floyd county was established. By the fourth section (page 226) of this act it is provided: "That said board shall have exclusive jurisdiction, when sitting for county purposes, over the following subject-matters: In governing and controlling all property of the county, as they may deem expedient, according to law; * establishing, altering, and abolishing all roads, bridges, and ferries, in conformity to law." The fifth section of the same act confers upon them all the powers possessed by the justices of the inferior court prior to the adoption of the Constitution of 1868, so far as related to county matters; and this, by reference, gave them the jurisdiction "to appoint the places for the erection of public bridges, county ferries, turnpikes, and causeways, and to make suitable provision for their erection and repairs, by letting them out to the lowest bidder, hiring hands, or in any other way that may be for the public good and agreeable to law" (Code 1868, § 710; and see Pol. Code 1895, § 602); also "to sit at any time as a court for county purposes and for the exercise of any power they possess as a quasi corporation contradistinguished from their power as a court"; and also "to exercise such other powers as are granted by law or are indispensable to

* in

their jurisdiction" (Code. 1868, § 347; and see Pol. Code 1895, § 4240). At the time this contract was made the alternative road law was in effect in Floyd county, and therefore section 576, subds. 3, 4, of the Political Code of 1895, may be applicable, as follows: "They [referring to the county commission- . ers] may have said roads worked, improved, or repaired, by contracting for the same in such manner as they may deem fit, with private parties or corporations; provided, that if the work is done by contract, the contractors shall be required to employ the chain-gang, if established, and the labor of those who do not pay the commutation tax, and to pay for the same. They may employ or combine any or all of said three abovementioned methods, or may use any other method or system that may be desired for accomplishing the work necessary to put and keep the public roads in good condition." It should be remembered, in this connection, that by Pol. Code 1895, § 5, the word "road” wherever it appears in a statute, includes all bridges thereon, unless the context requires a different construction.

These statutes manifestly purport to confer upon the county commissioners a jurisdiction, coupled with some considerable degree of discretion, over all road matters, including bridges, and the erection and maintenance thereof. Dillon on Municipal Corporations (section 445), taking up the contractual powers of counties, cities, towns, etc., in regard to those matters over which they are given jurisdiction by statute, asserts: "Public corporations may by their officers and properly authorized agents make contracts the same as individuals and other corporations, in matters that necessarily appertain to the corporation. Being artificial persons, they cannot contract in any other way." And, further (section 447): "The authority to enter into contracts necessary and proper to carry into effect their powers and discharge their duties is impliedly given to every such corporation." Tiedeman on Municipal Corporations, § 163, speaking on the same subject, says they "may, unless restricted by charter or state statute, enter into any contract which may be necessary to the execution of the powers and functions conferred. The general power to contract in furtherance of corporate purposes is inherent in all classes of corporations, both public and private.

* * Municipal corporations have all the powers of ordinary persons in regard to the contracts they are authorized to make, except when specially restricted." We will not be unmindful, in this connection, that counties, although they are corporations, are not for many purposes to be considered as standing upon the same footing with ordinary municipal corporations, such as cities and towns (Millwood v. DeKalb County, 106 Ga. 743, 32 S. E. 577, and cases cited), yet we believe that the measure of their contractual

capacity, in relation to any subject-matter expressly conferred by statute, is not different from that of other public corporations. The fact that counties, which have had corporate entity thrust upon them by compulsory enactment, are not held to the same degree of liability for neglecting to perform their corporate duties as are those public corporations which have in a sense sought charters, with concurrent privileges and responsibilities, does not abridge the power of the former to execute, through contract or otherwise, the powers actually conferred, in as full and ample a manner as might the latter class of corporations under similar circumstances. We conclude, therefore, that the statements quoted above from the eminent text-writers may be relied upon as correctly declaring the contractual powers of counties in this state.

In Justices v. Plank Road Co., 9 Ga. 485, our Supreme Court, speaking of the inferior court, which at that time was exercising the powers of the present county commissioners, said: "They are the agents of the county for many purposes. They are authorized by law to lay out and open roads. * They are the supervisors and managers of the property of the county-its courthouse, jail, and public bridges, for example. They impose the county taxes, etc. These powers characterize them as agents; and for the purpose of their agency they are collectively a corporation with limited powers. The right to sue, etc., is incidental to their agency." In Justices v. Smith, 13 Ga. 504, it is said: "The justices of the inferior court are the agents and trustees for the control and management of various public interests in the county of which they are officers. Among these are the funds for the education of the poor. For the purposes of this agency, as this court has held in the case of Justices v. Plank Road Company, they are collectively, a corporation with limited powers. As such, it would seem a fair and legitimate inference that in managing these funds, which they are required by law to receive and disburse by their agents, they have authority to require a bond from any one, as a condition on which they intrust him, as their agent, with the management and disbursement of the fund; and also that as such agent, in their quasi corporate character, they have the right to bring suit upon such bond, in case of breach thereof." These early cases give recognition to the implied contractual power of the county authorities as to matters within their jurisdiction. In Pennington v. Gammon, 67 Ga. 456, the doctrine of implied powers is given even more explicit recognition. In that case the court held: "Any county may organize a chain gang, to be composed of convicts, who may be employed in working on the roads, streets, or other public works. The power to make provision for their safe-keeping and for their

constant and diligent employment was vested originally in the ordinaries, and is now vested, in some counties, in county commissioners. Such powers include the right to use those means and incur those expenses which may be reasonably necessary for their execution, not exceeding the constitutional limit. Hence county commissioners may incur a debt for the purchase of necessary tools or implements, not exceeding the limit set by the Constitution." In the opinion in that case the following language appears: "It is not contended that the amount to be borrowed exceeds the constitutional limit. But it is insisted that $1,500 of this money is to be used in the purchase of a rock crusher and engine, and that no law has been passed authorizing such an increase of debt, and that no election has been held for that purpose. It is true that no law has been passed authorizing the commissioners to purchase the specific articles named; but there is a law authorizing the employment of the chain gang on the public roads, and the right to provide the necessary implements with which to do the work must of necessity follow. There is no law authorizing the purchase of spades, shovels, hoes, axes, or anything else needed, yet it would hardly be insisted that the right to purchase them did not exist. And if the commissioners should consider that the best and most economical method of working the public roads was to macadamize them, no legal reason has been given to us why they might not purchase such implements as would be needed and employ the chain gang in that way. We cannot see that the cost of the article to be purchased can affect the right to buy, so long as it does not exceed the limit of the amount they may have the power to levy, or the amount they are authorized to borrow to supply deficiencies in the revenues; and in this limitation lies the protection to the taxpayer." Carruth v. Wagener, 114 Ga. 740, 40 S. E. 700, it was held that, under the legislative grant of authority to build a courthouse, the county commissioners might let a contract for the erection of the foundations only, "regardless of whether the county has or has not made a complete contract for the erection of the entire structure." Thus, step by step, we trace in our decisions recognition of the doctrine that, where the power is given to the county authorities to effect a given end, the power to contract for the means whereby the end is to be effected is implicit, and also that the details of such contracts, except so far as the law or public policy prescribes or prohibits some particular form, are left to their discretion. Therefore the county commissioners of Floyd county, being vested by statute with the jurisdiction of building and repairing bridges, and therefore with the implicit power to build them and repair them in such manner and under such form of contract as their discretion might

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