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PREMIUM DISTRIBUTING COMPANY, INC., et al. v. STATE OF GEORGIA et al.
34838.
Condemnation. Before Judge McLanahan. Elberton City Court. July 18, 1953.
GARDNER, P. J.
1. It is not illegal merely to transport wines of not over 21% alcoholic content by volume into and over roads in a county which has not excluded from operation the provisions of the act of 1935 (Ga. L. 1935 p. 492), as amended by the General Assembly in the act of 1937 (Ga. L. 1937, p. 851), by a vote of the county as provided for in said acts.
2. A petition to condemn an automobile--merely on the ground that it is operated to convey wines of not over 21% alcoholic content by volume into and over roads, and merely for delivery of the wines by the operator of the automobile to another person, in a county which has not excluded the provisions of the act of 1935, as amended by the General Assembly in the act of 1937, by a vote of the county, as provided in said acts--is demurrable. This is true regardless of whether or not the operator of the automobile or the person to whom he delivers the wines and no other person in such county has ever applied for or received a license from the proper authorities of said county to sell wines.
This is a proceeding to condemn an automobile under Code (Ann. Supp.) 58-207 (Ga. L. 1917, Ex. Sess., p. 16; 1924, p. 198; 1946, pp. 96, 99).
To get a clear perspective of the subject matter here, we consider it expedient to quote the pleadings, omitting the formal parts: "Now comes Howard B. Payne, Solicitor of the City Court of Elberton, for State of Georgia, and files this proceeding seeking to condemn the foregoing described automobile under Section 58-207 of the annotated Code of Georgia (1951), and respectfully shows as follows:
"1. That on the 22nd day of May, 1953, Sheriff J. B. Gaines, Sheriff of Elbert County, Georgia, acting as such, seized the above described automobile for the reason that it was used in conveying certain liquors and beverages, to wit; wine, the transportation, possession and storing of which is, and was in violation of the laws of Georgia.
"2. The said automobile was then and there condemned by said sheriff who reported the same within a period of ten days after said seizure to the Solicitor of the City Court of Elberton, which said court has jurisdiction over said matter in Elbert County where said seizure was made.
"3. That within ten days from the time in which the Solicitor of the City Court of Elberton was notified by said sheriff of the seizure of said automobile said solicitor now institutes condemnation of said automobile in said court by this petition.
"4. Your petitioner shows that at the time of the seizure of said automobile by said sheriff the same was being used in the transportation of four cases of foreign wine, with an alcoholic content by volume of 20%.
"5. That Elbert County, Georgia is a 'dry' county in which wines as above described are not permitted to be sold, transported or possessed in the quantity mentioned.
"6. The Judge of the City Court of Elberton, acting under the authority and discretion granted to him by subsection H. of 58-207 of the Annotated Code of Georgia (1951), on the 26th day of May, 1953, permitted the owners of said automobile, the Premium Distributing Company, Inc., and Charles L. Upchurch, to give an eventual condemnation money bond for the possession of the vehicle seized, a copy of which said eventual condemnation money bond is hereto attached marked 'Exhibit A', and made a part hereof. As will be seen, Rayford H. Nash of Elberton, Georgia signed said bond as surety, and for that reason he is hereby made a party.
"7. Your petitioner shows that service of this petition has been made upon the owners of said car and upon the principal and surety of said condemnation money bond, who have each been notified that these matters will be heard and passed on by this court on the 11th day of July, 1953, at chambers Judge of the City Court of Elberton at the county courthouse in Elberton, Georgia, Elbert County.
"Wherefore, your petitioner, Howard B. Payne as Solicitor of the City Court of Elberton, in behalf of the State of Georgia and such persons as it may concern, brings this petition and asks that the court by its order, approve the seizure and condemnation of said automobile, and that in lieu of the sale of said automobile under said seizure, as provided in said Code Sec. 53-207, a judgment against the principal and the surety of said condemnation money bond be accordingly entered up by the court. Howard B. Payne, Solicitor of City Court of Elberton."
We do not deem it necessary to set forth the bond, notice, etc.
The respondents demurred to the petition of the solicitor, as follows: "1. The respondents demur generally to the petition on the grounds that admitting all properly pleaded allegations to be true, they do not authorize the relief prayed for and on the further grounds that said petition does not as a whole, nor do any of its several counts, paragraphs, or parts, show a cause of action against the condemnation of the above described motor vehicle.
"2. The petitioners demur specially to paragraph 1 of the petition on the ground that paragraph 1 fails to allege how, when, and in what manner, and over what highway or roads the alleged transportation of the liquor and beverages occurred.
"3. The petitioners demur specially to paragraph 4 on the ground that paragraph 4 fails to allege how, when, in what manner, and over what highway or roads the alleged transportation of the liquor and beverages occurred.
"4. The respondents demur specially to paragraph 4 on the ground that petitioners fail to allege whether the four cases of wine were tax paid or non-tax paid; that is, whether the revenue stamps required by the laws of Georgia were affixed to each bottle.
"5. The respondents demur specially to paragraph 5 of the petition of the ground that it is conclusion of law on the part of the pleader.
"Wherefore, The respondents pray that these demurrers be inquired into by the court and for sustained and such other and further relief to which they may be entitled. [Signed] Peyton S. Hawes, Joseph B. McGinty, Counsel for the Respondents."
The solicitor offered, and the court allowed, the amendments to the petition of the solicitor as follows: "1. Paragraph one of said petition to condemn is amended by adding thereto the following, 'The said transportation of said liquors was on the 22nd day of May, 1953 over Georgia Highway No. 72, Georgia Highway No. 77, in Elbert County, Georgia, and over the Ruckersville road, in Elbert County, Georgia; same was transported in said automobile, which was then and there being driven by Charles L. Upchurch.'
"2. Paragraph four of the petition to condemn is amended by adding thereto the following; 'That said automobile had been on said named date, towit; 22 May 1953, used by the Premium Distributing Company, a Corporation of Georgia, Charles L. Upchurch driving the same, to transport over said Georgia Highway No. 72, Georgia Highway No. 77, and the Ruckersville Road in Elbert County, Georgia, the wine as hereinafter described, two cases of which wine were then and there delivered to Harley Rucker of said county; the two cases of wine so delivered to Harley Rucker consisting of one case of wine containing 24 pints Gold Medal Italian Swiss Colony California Sherry, 20% alcohol by volume, bottled by Colony Wine Company of Atlanta, Georgia, and which wine was not domestic wine; also one case, 24 pints wine, Italian Swiss Colony Port Wine, 20% alcohol by volume, bottled by Colony Wine Company, Atlanta, Georgia, which wine was not domestic wine; also transported in said car driven by said Upchurch as aforesaid was an additional 24-pint case of the same kind of Port Swiss Colony wine. All of said wine had the revenue stamps required by the laws of Georgia affixed to each bottle.
"3. Paragraph five of the petition to condemn is amended by adding thereto the following;--'Harley Rucker does not possess a license from the licensing authority of Elbert County, Georgia to sell wine of the kind described in this seizure.
"No person, firm or corporation in Elbert County, Georgia, has or had on the 22nd of May, 1953, a license to sell such wine, or to keep such wine on hand in the quantity mentioned, in Elbert County, Georgia, and condemnees had no such license."
Counsel for both parties at this stage of the procedure entered into the following factual stipulation, to become a part of the record in the question: "Elbert County is a 'dry' county, by which it is meant that the legislative enactments for the control and legalization of whiskey (or liquor) have not been adopted by a local referendum.
"The Wine Act of the State of Georgia of 1935, as since amended, wine has not at any time been voted out in a referendum in Elbert County called for that purpose as provided in said act of 1935, there has never been any other referendum in Elbert County of any kind under the wine act.
"That the Commissioner of Roads and Revenue of Elbert County has never at any time issued a license to any one for the sale of wine in Elbert County as provided for in said act. No applications for license to sell wine have been made to Elbert County, Comm. This July 18, 1953." The court approved the stipulations as a part of the record.
To this judgment overruling their general demurrer, the respondents, Premium Distributing Company, Inc., et al. (the plaintiffs in error here, whom we shall call the defendants) filed exceptions, naming the State of Georgia et al. as defendants in error (hereinafter called the plaintiffs).
1. The question for decision here is whether or not the wines as set out in the petition, which were stamped properly under the law, were contraband, the transportation of which would subject the automobile in question to condemnation. The pertinent statute which is applicable here will be dealt with now.
The General Assembly in 1935 passed an act (Ga. L. 1935, p. 492), the caption of which is: "An Act to promote temperance and prosperity for Georgia people; to foster and encourage the growing of grapes, fruits and berries on Georgia farms; to legalize the making of light domestic wines; to exempt from all taxation wine made from crops of grapes, fruits, and berries, whether wild or cultivated, by producers in Georgia of such crops, and to provide for the holding of an election to ratify or reject this Act; and for other purposes."
Section 2 of this same act reads: "Be it and it is hereby further enacted that any grower of such crops may make such wines and sell same to any person, firm or corporation who may now be or hereafter legally engaged, either as wholesaler or retailer, in the sale of alcoholic beverages, free from any taxation whatever."
This act provided a State-wide referendum. The State as a whole adopted by referendum the provisions of this act. It will be noted that this act made legal the possession and sale of certain wines by parties named therein who complied with certain requirements provided for in said act. It is also well in this connection to note that any county which desired to exclude the provisions of this act from operation within the county could, by complying with the provisions of said act, vote out or prohibit the manufacture and sale of such wines within the confines of the county. In the event the county voted out the manufacture and sale of such wines as provided for in the act, it would be unlawful to make or sell the wines mentioned in said act. This is the act which is generally known as the Domestic Wine Act.
The General Assembly in 1937 (Ga. L. 1937, p. 851) amended the said act of 1935; the caption of the amending act is as follows: "An Act to amend an Act entitled, 'An Act to promote temperance and prosperity for Georgia people; to foster and encourage the growing of grapes, fruits and berries on Georgia farms; to legalize the making of light domestic wines; to exempt from all taxes wines made from crops of grapes, fruits and berries whether wild or cultivated by producers in Georgia of such crops and to provide for the holding of an election to ratify or reject this Act; and for other purposes'; approved March 23, 1935, and contained on pages 492 to 494 of the Acts of the General Assembly of 1935; by striking certain words and sections from said Act; by legalizing the making and manufacturing and selling of domestic and foreign wines; by defining domestic and foreign wines; by providing for licensing of retail and wholesale dealers and wineries; by providing for a license tax on all dealers, manufacturers and wineries; and a tax on all wines manufactured or sold; by providing for the confiscation and destruction of wines manufactured, possessed or sold contrary to the provisions of this Act; by prohibiting the sale of wine on the Sabbath day, and to provide a penalty for the violation of this provision; by allocating the revenue derived under this Act; by providing for rules and regulations for the enforcement of this Act; by providing a separability clause; and for the repeal of all laws in conflict with this Act; and for other purposes."
The amending act of 1937 made lawful the manufacturing and selling of domestic wines, and in section 3, subsection (a), fixed a tax of 30 per gallon on wines which were between 14% and 21% alcoholic content by volume; and further on wines of not more than 14% alcoholic content by volume the act fixed a tax of 10 per gallon. Section 3, subsection (b) of said act defined foreign wines, and stated that, where the alcoholic content is not more than 14% by volume, a tax of 40 per gallon would be levied and, for wines between 14% and 21% alcoholic content by volume, a tax of 60 per gallon would be levied. It may be specifically noted that the amending act retained the provision of the 1935 act to the effect that the general referendum by the State as a whole would legalize the possession and sale of wines by complying with the provisions of the 1935 act, and the 1937 act where the manufacturing and selling of wines had not been prohibited by a vote of the county.
The laws with reference to alcoholic wines as defined in the act of 1935, supra, and in the act of 1937, supra, amendatory of the act of 1935, have not been changed by any other act of the General Assembly in any material way to affect the laws applicable to wines as provided for in the act of 1935, supra, and the amendment of that act under the act of 1937, supra. Those acts mentioned set out the laws applicable to a county which has not prohibited the sale of such wines in such counties.
That the Commissioner of Roads and Revenue of Elbert County has never at any time issued a license to any one for the sale of wine in Elbert County as provided for in said act. No applications for license to sell wine have been made to Elbert Co. Comm. This July 18, 1953."
It will be noted that the petition does not allege that the defendants were or were not licensed in any way to transport the wines in question. It is not alleged or shown that anyone sold the wines in question in Elbert County. Tax-stamped wines in Georgia are not contraband in counties which have not voted out wines under the acts of 1935 and 1937, supra. So far as the facts in this case show, the automobile in question was a privately owned automobile which transported the wines in question over the highways named and delivered the wines to Mr. Harley Rucker. We know of the violation of no law under the record of this case which would subject an automobile to condemnation for merely transporting any quantity of wines into a county which had not voted out the provisions of the act of 1935, supra, and the amendatory act of 1937, supra. This specific power of condemnation invoked in this case by the State of Georgia is in derogation of the common law, must be strictly construed, and is not to be enlarged by implication. See State of Georgia v. Schafer, 82 Ga. App. 753 (62 S. E. 2d 446). There are many other decisions to the same effect.
It is noted that section 10 of the act of 1937 (Ga. L. 1937, p. 860; Code, Ann. Supp., 58-930) empowers any officer of the revenue department to declare contraband and destroy any wine that has "an alcoholic content of more than 16 per cent by volume." The court has examined the original bill in the House of Representatives (House Bill 723) and, through the media of the journals of the House and Senate, has traced the legislative progress of the bill through the two houses to its final enactment. In the first of numerous amendments to the bill in the House and in the Senate, the figure of 16% was added as the upper limit for the alcoholic content of all wines in Georgia, but by a later amendment that figure was dropped and the 21% figure was substituted and adopted by the conference committee of the two houses appointed to reconcile the differences between the two houses, and wherever 16% had appeared before, 21% was substituted throughout the bill, except in section 10. Therefore, it is clear, and this court holds that, inasmuch as this section is inconsistent with the many other paragraphs of the act, the General Assembly manifestly intended that the 16% figure in section 10 should be changed to 21% in keeping with the same changes made at other points in the bill, and the fact that it was not changed was a mere oversight. 2 Sutherland, Statutory Construction (3rd ed.) 506, 5015; Gay v. Ruff, 292 U. S. 25 (54 Sup. Ct. 608, 78 L. ed. 1099). Other interpretation on that section would make the act itself contradictory and inconsistent, and acts of the General Assembly will always be given a reasonable intendment by the courts where possible. State Revenue Comm. v. Alexander, 54 Ga. App. 295 (1) (187 S. E. 707), and citations.
We are asked in this proceeding to overrule the cases of Owen v. State, 78 Ga. App. 558 (51 S. E. 2d 602), and Colbert v. State, 80 Ga. App. 641 (56 S. E. 2d 830). Those cases deal with a different offense, i.e., illegally possessing wine, and not, as here, the illegal transportation of wine. Illegal possession is not alleged in the instant case. We are here dealing with only the illegal transportation of the wine in question in the automobile sought to be condemned. It may be said that, if the transportation in the instant case was not illegal, the possession of the wine in the instant case was not illegal. If there be anything in those two decisions by implication or otherwise that is in conflict with the holdings in the instant case, those cases are in all such respects overruled.
The court erred in overruling the respondents' demurrers to the petition to condemn the automobile in question.
Judgment reversed. Sutton, C. J., Felton, Townsend, Carlisle, and Quillian, JJ., concur.
Howard B. Payne, Solicitor, contra.
Peyton S. Hawes, Jos. B. McGinty, for plaintiffs in error.
DECIDED NOVEMBER 24, 1953.
Saturday May 23 04:22 EDT


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