Opinion
18732.
ARGUED SEPTEMBER 15, 1954.
DECIDED NOVEMBER 9, 1954. REHEARING DENIED DECEMBER 2, 1954.
Petition for injunction. Before Judge Byars. Fayette Superior Court. July 15, 1954.
Colon J. Cogdell, Christopher Futral, for plaintiffs in error.
Eugene Cook, Attorney-General, John W. Wilcox, Jr., Assistant Attorney-General, B. B. Zellars, Joel J. Fryer, contra.
1. The "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" (Ga. L. 1937-38, Ex. Sess., pp. 103-124; Code, Ann. Supp., Chapter 58-10) provides that the State Revenue Commissioner shall have power to "revoke or cancel for cause after hearing any license issued by him." Code (Ann. Supp.) § 58-1022 (c).
2. The petition alleged that the notice served on the petitioners specified the violations charged as that of "selling whiskey to non-licensees . . . between the 10th of January and the 27th of February," and the violation of Executive Order 603, providing for the manner of receiving alcoholic beverages by wholesale licensees. This notice was a sufficient compliance with the requirements of the act.
3. The act creating the Department of Revenue and the office of State Revenue Commissioner, entitled, "Administration of Taxing Laws" (Ga. L. 1937-38, Ex. Sess., pp. 77-103; Code, Ann. Supp., Chapter 92-84) was amended by the acts of 1943 (Ga. L. 1943, pp. 204, 206; Code, Ann. Supp., § 92-8426.4). This amendment repealed the provisions of the original act creating a State Board of Tax Appeals and substituted in lieu thereof the following: "Except as otherwise provided by this Act, all matters, cases, claims and controversies, of whatsoever nature arising in the administration of the revenue laws, or in the exercise of the jurisdiction of the State Revenue Commissioner or the Department of Revenue, as conferred by this Act, shall be for determination by the State Revenue Commissioner, subject to review by the courts as provided for by Section 45 of Chapter IV of this Act." Under sec. 45 of the original act (Ga. L. 1937-38, Ex. Sess., p. 100; Code, Ann. Supp., § 92-8446), the petitioners would have the right to appeal to the superior court of the county of their residence within fifteen days from the date of a judgment canceling the license described in the petition.
4. The petitioners, therefore, have a full, complete, and adequate remedy provided by law, and the trial court properly dismissed their action seeking to enjoin a hearing by the commissioner.
Judgment affirmed. All the Justices concur.
ARGUED SEPTEMBER 15, 1954 — DECIDED NOVEMBER 9, 1954 — REHEARING DENIED DECEMBER 2, 1954.
James M. Rozier and Brunswick Distributing Company brought a petition for injunction in Fayette County against Charles D. Redwine, in his official capacity as Commissioner of Revenue of the State of Georgia. It was alleged: Rozier was issued Wholesale License No. 1 to sell alcoholic beverages and liquors at wholesale in the State through the year 1954, and he executed a compliance bond in the amount of $5,000, which was deposited with the Commissioner. Since receiving the license, he has been engaged in the wholesale business in approximately thirteen counties in southeast Georgia, including Glynn County, where he resides and where the wholesale business is located. The Commissioner is attempting to cancel the petitioner's license and to forfeit his performance bond. Citations were issued, requiring the petitioner to show cause before the Commissioner on May 25, 1954, why his license should not be canceled. The petitioner has been charged with selling whisky to non-licensees, and violating Executive Order 603 (which purports to regulate the receipt of alcoholic beverages by wholesale licensees). No bill of particulars has been furnished to the petitioner to acquaint him with the alleged offenses with which he is charged, although he has demanded such a bill of particulars. The power to cancel licenses is given to the Commissioner under stated subsections of Code (Ann. Supp.) § 58-1022 (Ga. L. 1937-38, Ex. Sess., p. 108).
It is contended that the attempt to cancel the petitioner's license is unconstitutional for numerous reasons. The contentions relate generally to the failure of the Commissioner to make regulations to implement the law giving him authority to cancel licenses, the lack of rules giving the petitioner the right to subpoena witnesses, and the requirement that he show cause in Atlanta instead of his own county, where witnesses will be available to him.
The petition prayed that the defendant be temporarily and permanently enjoined from canceling the license and forfeiting the bond of the petitioner, and from proceeding with the hearing on May 25.
The Commissioner filed a general demurrer to the petition. At the hearing counsel for the Commissioner made an oral motion to dismiss the case on the ground that the petition was a suit against the Commissioner in his official capacity, and thereby a suit against the State of Georgia in its sovereign capacity. The trial judge sustained the demurrer and the motion to dismiss, and the exception is to that judgment.