This is an appeal from a judgment of the Superior Court of Fulton County restraining and enjoining the appellants from refusing to issue the appellees a beer license..
Code Ann. § 58-718 provides: "The privilege of . . . selling by wholesale or retail of beverages provided in this chapter is purely a privilege [emphasis supplied] and no business legalized by this chápter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits.” Ga. L. 1935, pp. 73, 80.
This court has passed upon questions arising under this statute several times since its enactment, and uniformly upheld the statute. In Harbin v. Holcomb, 181 Ga. 800 (2c) (184 SE 603), it was held that: "The refusal of a license to the petitioner does not deprive him of life, liberty, or property. The sale of malt beverages is declared by the Act to be a privilege, and denial of a license does not deprive the petitioner of anything to which he has an absolute right. The court did not err in sustaining the general demurrer to the petition.” See Murray v. City of Ashburn, 182 Ga. 699 (186 SE 801).
In City of East Point v. Weathers, 218 Ga. 133, 136 (126 SE2d 675), where, by ordinance, the city proposed'to prohibit the sale of malt beverages within the city, this court held that the question involved is not one of public right and its object is not to enforce a public duty since the question of whether permits will be granted to sell malt beverages, within the city is a matter of privilege and within the discretion of the governing .authority of the municipality, which may grant or refuse some or all such permits at its pleasure. See Gaissert v. State, 186 Ga. 599 (198 SE 675); Hart v. Head, 186 Ga. 823 (199 SE 125); Phillips v. Head, 188 Ga. 511 (4 SE2d 240); *504Richmond County v. Glanton, 209 Ga. 733 (76 SE2d 65); Weathers v. Stith, 217 Ga. 39 (1) (120 SE2d 616), and cases cited..
Argued July 11, 1972 Decided September 7, 1972 Rehearing denied September 25, 1972. Henty L. Bowden, John E. Dougherty, for appellants. Albert M. Horn, Glenn Zell, for appellees.The cases relied upon by the appellees to support the contention that the granting of a license to sell malt beverages is not a "mere privilege” and must meet the requirement of due process and equal protection are not controlling. The case of Hornsby v. Allen, 326 F2d 605, is not controlling on this court. The other cases, Schware v. Board of Bar Examiners, 353 U. S. 232, 238 (77 SC 752, 1 LE2d 796); Sherbert v. Verner, 374 U. S. 398, 404 (83 SC 1790, 10 LE2d 965); and Shapiro v. Thompson, 394 U. S. 618, 627 (89 SC 1322, 22 LE2d 600), are not in point, as they deal with different situations. In the Schware case, where the Board of Bar Examiners refused to permit Schware to take the Bar Examination, the court held that "whether the practice of law is a 'right’ or a 'privilege’ need not here be determined; . . .” In the Sherbert case, the South Carolina statute abridged the appellant’s rights to free exercise of religion.
For the foregoing reasons, the judgment of the trial court was error.
Judgment reversed.
All the Justices concur, except Hawes and Gunter, JJ., who dissent.