Swanson et al. vs. Calhoun.

"I give and bequeath to my beloved daughter, Martha Swanson, all of my estate, both real and personal, for the use of her and her daughter Mayler, and after my daughter's death, one half to be equally divided between three grandchildren, namely, W. A. Swanson, Mattie L. Seay and A. C. Calhoun; the other half to go to my granddaughter, Mayler Swanson; and if she dies without heirs, to be equally divided between W. A. Swanson, Mattie L. Seay and A. C. Calhoun."

The following legatees are still in life: Martha Swanson, W. A. Swanson and A. C. Calhoun. Mattie L. Seay died intestate, leaving as her only heirs at law her husband and one child. The husband of Mattie L. Seay also died intestate. Mayler Swanson died without issue and intestate, in the year 1885. Mattie L. Seay and her husband survived Mayler Swanson only a short time.

The trial judge, after hearing argument in the case, decided that A. C. Calhoun, the petitioner, was entitled to have the land partitioned; and appointed commissioners to divide the same; to which judgment Martha Swanson excepted, and brought the case here for review.

We think the court below erred in the decision complained of. This land was given by will to Martha Swanson, the daughter of the testator, for the use of herself and her daughter, Mayler, during her life. After her death it was to be equally divided between her daughter, Mayler, and three other grandchildren, W. A. Swanson, Mattie L. Seay and A. C. Calhoun; and if Mayler died without heirs, her part was also to be equally divided between the same parties. This land, under the will, was not to be divided until after the death of the life tenant, Martha Swanson. Mayler, her daughter, had a joint use of the land with her mother, during the mother's lifetime; and if she had lived, she could only have received her portion of the land, under this will, after the death of her mother. A. C. Calhoun, the peti

Combs vs. The State of Georgia.

tioner, does not claim as heir at law of Mayler, but as a legatee under the will. If he claims under the first clause of the will, in which half of the property is given to him and Swanson and Mattie L. Seay, then he has commenced his proceedings for partition too soon; for the property is not to be divided until after the death of Martha Swanson. If he claims under the last clause, which says that, in case of Mayler's death without heirs, the property is to be equally divided between him and Swanson and Mattie L. Seay, we think he has also commenced his proceeding before the time contemplated by the testator for the division of the property; because, as we have said, if Mayler had survived, she would not have been entitled to a division of the land until the death of her mother, Martha Swanson.

Judgment reversed.

COMBS VS. THE STATE OF GEORGIA.

In a prosecution under one of the local option laws passed by the legislature, it is not necessary for the State either to allege in the indictment, or to prove before the jury, that such laws are operative in the counties which have adopted them by a vote of the people. They are public local laws, published by authority, and may be judicially recognized without proof.

(a) Where the local option act in question provided for consolidation and return of votes to the clerk of the superior court; that the clerk should announce the result by publication; and that the act should take effect on the day of publication; and also that such notication of the result should be entered on the minutes of the superior court, and should be competent evidence to show when the act took effect; and the judge below had these minutes before him, there was no error in his reading from them and instructing the jury as matter of law as to when the act went into effect. Whether a law is in existence is for the court to say, and not for the jury.

December 12, 1888.

Combs vs. The State of Georgia.

Liquor. Laws. Evidence. Practice. Before Judge FAIN. Catoosa superior court. March term, 1888

Reported in the decision.

W. H. PAYNE and R. J. MCCAMY, for plaintiff in error.

J. W. HARRIS, Jr., solicitor-general, by A. S. JOHNSON, for the State.

SIMMONS, Justice.

Combs was indicted for selling intoxicating liquors in the county of Catoosa, "contrary to the laws of said State," etc. He pleaded not guilty. On the trial of the case, the jury returned a verdict of guilty. He made a motion for a new trial, which was overruled by the court, and he excepted.

The only ground insisted on before us for the reversal of the judgment of the court below, was the third ground of the motion, which is as follows: "Because the court erred in charging the jury as follows: 'I charge you that the local option law for Catoosa county is now of force, and was when the offence in this case is alleged to have been committed. I have before me the record kept by the clerk, in which it is recited that at the election held under the provisions of said law, a majority of the votes cast were for prohibition, and the law became operative in Catoosa county on the 8th day of November, 1883.'"

The plaintiff in error was indicted under the act approved September 28th, 1883, which provides that "it shall not be lawful for any person to sell in any quantity any spirituous or intoxicating liquors in the county of Catoosa in this State, and any person violating the provisions of this act shall be deemed guilty of a misde

Combs vs. The State of Georgia.

meanor, and on conviction thereof, shall be punished," etc., "provided this act shall take effect only on the following conditions, and not otherwise." The act then provides that the ordinary of said county shall order an election, and give notice by publication in a newspaper; that the election shall be held under the general laws governing elections in this State; and that the managers of said election at the different precincts shall make returns from their respective districts, and shall assemble at the court-house to consolidate the votes, and make return of the same, with the tally-sheets and lists of voters, to the clerk of the superior court, whose duty it shall be to file the same in his office and announce the result of said election in a newspaper; and if a majority of the legal votes of said county are for prohibition, then this act shall take effect on the day of the publication of the result by the clerk, and he shall so announce in his notice. The act further provides that, if a majority of the legal votes of said county shall be for prohibition, the clerk of the superior court of said county shall file a copy of said notice issued by him, with his certificate showing the date thereof, in his office, which notice and certificate shall be entered on the minutes of the superior court of said county, and said record or a certified copy thereof shall be competent evidence to show when this act went into effect. Acts 1882-3, p. 613.

Counsel for the plaintiff in error insisted before us that the court erred in giving the above charge, for two reasons (1) because there had been no evidence introduced before the jury that the law had gone into effect in the county of Catoosa; and (2) because it was an expression of opinion by the court on the facts of the case. We do not think that these exceptions to the charge are well-founded. We do not think that, in a

Combs vs. The State of Georgia.

prosecution under the local option laws passed by the legislature, it is necessary for the State either to allege in the indictment, or prove before the jury, that said laws are operative in the counties which have adopted them by a vote of the people. They are public local laws, passed by the legislature and approved by the governor, and as such would be judicially recognized without proof. Section 3815 of the code declares that "all laws and resolutions of the General Assembly, as published by authority, shall be held deemed and considered public laws, and recognized judicially without proof." This was an act passed by the General Assembly and published by authority, and will therefore be recognized without proof.

But it is argued that, while this may be true, the act itself will be recognized without proof; yet the fact of its having been adopted by a majority of the votes must be submitted to the jury, and it is for the jury to say whether it has been so adopted or not. This act provides that the managers of the election shall consolidate the votes of the different precincts in the county, and make a return to the clerk of the superior court, and that the clerk shall announce the result by publishing the same in a newspaper, and that the act shall take effect on the day of the publication of the result by the clerk. It provides further that this notice shall be entered on the minutes of the superior court, and it shall be competent evidence to show when the act took effect. "Courts are created to administer and enforce the law. Therefore they do and must take judicial cognizance of all laws. Whether the law was in existence is for them to say, just as fully as it rests with them to say whether the indictment is good or bad, or that the evidence to prove the offence alleged is legally admissible or otherwise. To the courts