Cactus Distributing Co. of Phoenix, Ariz. v. State, 5-5349

• Decision Date: 05 October 1970
• Docket Number: No. 5-5349,5-5349
• Citation: 249 Ark. 113,458 S.W.2d 149
• Parties: CACTUS DISTRIBUTING CO. OF PHOENIX, ARIZONA, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 149

458 S.W.2d 149

249 Ark. 113

CACTUS DISTRIBUTING CO. OF PHOENIX, ARIZONA, Appellant, v. STATE of Arkansas, Appellee.

No. 5-5349.

Supreme Court of Arkansas.

Oct. 5, 1970.

Smith, Stroud, McClerkin & Conway, by William H. Howell, Texarkana, for appellant.

Joe Purcell, Atty. Gen., Garner L. Taylor, Jr., Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

This is an appeal from an order declaring a shipment of liquor to be contraband and directing its confiscation and sale.

Appellant is an Arizona corporation, having its principal place of business in Phoenix. It is licensed by the State of Arizona as a wholesale liquor distributor, and is also licensed by the State of Kentucky to purchase liquor from distilleries located there. Having ordered, in its regular course of business, a shipment of liquor from a Kentucky distillery, appellant entered into its customary written agreements with two Phoenix companies, Temco Truck Rental and Continental Drivers Service, whereby the former was to furnish a truck and the latter was to provide certified truck drivers for the transportation of the shipment from Kentucky to Arizona. By subsequent verbal agreements, Temco procured the use of a semi-trailer truck owned by a resident of Tennessee, and Continental arranged for Mr. Harry Landrith, also of Tennessee, to drive the rig. The driver and the rig were located near the origin of shipment.

Prior to shipment, tax stamps were placed on each bottle as required by federal law; and, on October 23, 1969, the liquor having been loaded into the trailer rig, Landrith began the haul from Kentucky to Arizona. The following day, the truck was stopped in Hempstead County, Arkansas, a dry county, for failure to have a vehicle permit for the transportation of liquor as required by Ark.Stat.Ann. § 48-404 (Repl.1964). The shipment of liquor (997 cases having an estimated value of $40,000) was seized in accordance with §§ 48-925, 48-926. Appellant, as owner of the seized liquor, filed a petition for its release in the Municipal Court of Hope, Arkansas, as authorized by § 48-927. A hearing was held which resulted in an order declaring the shipment contraband and directing its sale as specified in § 48-929. Pursuant to § 48-928, an appeal was lodged in the Circuit Court and from that court's affirmance of the confiscation order comes this appeal.

For reversal, appellant asserts numerous arguments. However, in the circumstances of this case, we deem it necessary to discuss only whether the confiscation of the shipment constitutes an unreasonable burden on interstate commerce.

A vehicle permit ($50.00) had not been secured from Arkansas authorities. Therefore, appellant's shipment did not enjoy exempt passage through Arkansas and Landrith, driver of the truck, was properly apprehended and fined for being in possession of 997 cases of liquor in a dry county in violation of § 48-922.1. From these facts a rebuttable presumption arose that the liquor was to be illegally diverted into Hempstead County. Section 48-922. Consequently, seizure of the shipment was appropriate.

At the hearing to determine the propriety of the confiscation and sale, however, undisputed testimony from various witnesses established that appellant was duly licensed in Kentucky and Arizona and had met all federal license requirements; that for the past three years it had ordered and received cross-country shipments of liquor at least once each month; that this particular shipment was for distribution during the winter holidays and constituted approximately 40% of appellant's annual business; that appellant's prior purchases had never been transported in violation of any state or federal law; that it was the responsibility solely of Temco Truck Rental, an independent contractor, to determine the transportation route and to secure any necessary permits; that Landrith had been expressly directed by Temco not to drive through Arkansas; that the driver was the employee of Continental Driver Service, an...