The answer of the Supreme Court in Pierce v. State, supra, to the certified questions, being contrary to our position, and since we did not participate in the subsequent decision of that case by this court, which was required as rendered by this court in order to conform to the answer of the Supreme Court, we concur specially in division 4 hereof. This we do without criticism of the Supreme Court or the Judges of this court who share its views, but in order to avail ourselves of this our first opportunity since the rulings of the Supreme Court and of this court in the Pierce case to state our position on the construction of the statutes involved.
We do not think that the legislature by the "Revenue Act to Legalize and Control Alcoholic Beverages and Liquors" intended to provide that any prohibition law or any law relating to the beverages legislated about in the act should be effective in a dry county except the Code, § 58-201, as amended by the new act to permit possession of one quart of legally stamped liquor in a dry county. All of the remainder of the act was intended to be of force only in wet counties. Section 4 of the act provides: "The license hereinafter provided for and the tax levied on the manufacture, sale, and distribution of distilled spirits and alcohol, as authorized by this Chapter, is authorized only in those counties in which a majority of those voting at an election, to be held for the purpose, vote in favor of taxing and controlling alcoholic beverages and liquors as hereinafter provided for." Ga. L., Ex. Sess., 1937-1938, p. 105; Code, Ann. Supp., § 58-1002. Section 4 further provides: "If at such election a majority of the votes cast shall be against the taxing and legalizing and controlling of alcoholic beverages and liquors, the manufacture, *Page 29 distribution, and sale of same in such county shall be prohibited as is now provided by law." Ga. L., Ex. Sess. 1937-1938, pp. 105, 106; Code, Ann. Supp., § 58-1009. Section 23 B of the act provides: "It shall not be unlawful for any person to have and possess for use and not for sale, in any county of the State, one quart of the liquors and beverages described in this Chapter, which may have been purchased by the person for use and consumption from a lawful and authorized retailer and properly stamped, and this section shall be construed to repeal any and all laws in conflict with this section and Chapter as herein expressed." Ga. L., Ex. Sess. 1937-1938, p. 122; Code, Ann. Supp., § 58-1073. Section 27 provides: "Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this Chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors. The fact that such person may have a license or liquor stamps shall be no defense in such prosecutions, where said liquor is carried into a county to which the terms of this Chapter do not apply, and wherein liquor is not legalized under the terms of this Chapter." Ga. L., Ex. Sess. 1937-1938, p. 123; Code, Ann. Supp., § 58-1077. "It is the purpose and intent of section 58-1077 to maintain the present prohibition, law against liquor and alcoholic beverages in those counties of this State not specially exempted from the provisions of the prohibition law under this Chapter; and to provide for the trial and conviction of persons guilty of selling or possessing such liquor in such counties, as is now provided by law unless exception is made herein, prior to the passage of this Chapter, and it is the purpose and intent of said section to provide that the prohibition law is not repealed in Georgia, except in the counties which have by a majority vote voted this Chapter into operation." Ga. L. Ex. Sess., 1937-1938, p. 123; Code, Ann. Supp., § 58-1078. It is clear to us that under the express provisions of the act the only law applicable in a dry county is the old law ( § 58-201) as amended by the act. It is true that section 11, c, provides: "The possession of any distilled spirits or alcohol by any person which does not bear the tax stamps provided for herein shall be unlawful, *Page 30 and such distilled spirits or alcohol shall be subject to seizure by any peace officer, or agent of the Revenue Commissioner, and the offender shall be guilty of a misdemeanor and upon conviction shall be punished as such." Ga. L. Ex. Sess. 1937-1938, p. 117; Code, Ann. Supp., § 58-1056. However, the entire section applies only to wet counties and it was the intention of the legislature to make it an offense to possess liquor without stamps in a wet county only because it was so indicated by every word on the subject and by the context of this provision. By the provisions of the act it cannot become operative in a dry county. It requires a vote of the people in any county to repeal the old prohibition law and put the new law into operation (sec. 27). As further supporting this view, section 11, d, provides: "The sale or purchase of any distilled spirits or alcohol as defined in this Chapter, by any person, which does not bear the tax stamps provided for herein shall be unlawful, and the offender, buyer or seller, or both, shall be guilty of a misdemeanor and upon conviction . . punished as such." Ga. L. Ex. Sess. 1937-1938, p. 117; Code, Ann. Supp., § 58-1057. Our view is that this section applies only to wet counties because the context so shows and the act states that it amends the old law (which we contend applies to dry counties and is the only law that does) in one particular only. Section 11, d, makes it unlawful for one to purchase liquor without stamps. It is not illegal under the old law to purchase liquor and therefore if this section applies to dry counties, the old law is amended in another particular, to-wit, making it illegal to buy liquor in a dry county. So if the new law as well as the old applies in a dry county as held by the Supreme Court, the old law is amended in several particulars instead of just one as expressly stated in the act. So much for section 11, c, Ga. L. Ex. Sess. 1937-1938, p. 117; Code, Ann. Supp., § 58-1056.
The Supreme Court also held that section 27 (Code, Ann. Supp., § 58-1077), applies to legally stamped liquor, the implication being that it is a violation of the act in question to possess more than a quart of legally stamped liquor in a dry county, as a separate offense from that of merely possessing whisky (not legally permitted by the one stamped quart amendment). It is our view that this section is simply a partial restatement of the *Page 31 old law as amended by the act, and the section does not confine the prohibition therein to stamped liquor because it expressly says that if more than a quart is possessed stamps constitute no defense. The section therefore makes it illegal to possess more than a quart whether it is stamped or not. The implication of the ruling by the Supreme Court is that one possessing two quarts of stamped whisky in a dry county is guilty of possessing whisky under the old law as amended, and also of possessing more than a quart of stamped whisky. We think both of these so-called offenses are identically the same and that the only real offense under the law is possessing whisky under the old law as amended. Possession of whisky without stamps is the only offense one can commit in a wet county so far as possessing it is concerned. What good reason is there for making the possession of whisky in a dry county two offenses? The same question as to selling and transporting?