Diamond v. State
| Decision Date | 22 October 1910 |
| Citation | 131 S.W. 666,123 Tenn. 348 |
| Parties | DIAMOND v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Scott County; G. McHenderson, Judge.
Oscar Diamond was convicted of selling liquors without a license and he brings error. Modified and affirmed.
J. C.J Williams, for plaintiff in error.
Assistant Attorney General Faw, for the State.
The plaintiff in error was arraigned before the circuit court of Scott county on a presentment found at the October term 1909, charging that the said Oscar Diamond, "on the first day of July, 1909, in the state and county aforesaid on the day and year aforesaid, did unlawfully sell intoxicating liquors for a valuable consideration without first having taken out the license, giving the bond, and taking the oath according to law." He was convicted and sentenced to pay a fine of $100, and to suffer one day's confinement in the county jail.
From this judgment he appealed to this court, and has here assigned errors.
The assignments, so far as they need be noticed, present the single question whether the plaintiff in error was properly convicted upon the certificate of the United States internal revenue collector alone, showing a license to him as a retail liquor dealer, without evidence that he had made a sale to any particular individual. The state introduced no other evidence in the trial court, and the plaintiff in error introduced none.
The presentment was found under chapter 479, § 16, Acts of 1909, taken in connection with section 14, and that part of section 4 which relates to liquor dealers. The latter reads:
shall pay a tax each, in lieu of all other taxes to be paid in any
county they may elect, per annum ....................................... 500 "Persons selling liquor in quantities of one quart or more, except manufacturers selling to dealers in original packages of not less than five gallons, are wholesale dealers, and persons selling smaller quantities than five gallons are retail dealers; and the tax on liquor dealers applies to all drug stores, except in uses of wine for sacramental purposes and alcohol for domestic purposes. No producers of grape wine, where they raise and make the wine themselves, shall pay any privilege tax for selling the same.
It is perceived that under section 4, the procuring of a United States revenue license as a wholesale or retail liquor dealer must be taken as prima facie evidence that the person so procuring is engaged in the wholesale or retail liquor business.
Under chapter 384, Acts of 1909, it is provided that "in all prosecutions for violations of the laws of this state prohibiting the sale of intoxicating liquors, copies of the records in the office of the internal revenue collector of the United States for the district of Tennessee, showing that the defendant has paid the internal revenue special tax as a liquor dealer, or showing the issuance to the defendant of an internal revenue special tax stamp, shall be admitted as competent evidence, when such copies are certified to be full, true and complete by the district internal revenue collector."
In the case of Foster v. Speed, 120 Tenn. 470, 111 S.W. 925, 22 L. R. A. (N. S.) 949, it was held that a prohibited business may be taxed; that the fact that a business is made unlawful as a misdemeanor, and a license cannot be issued or obtained authorizing it, does not prevent the collection of the privilege tax imposed upon such business from a person engaged therein; that a statute making the retailing of liquors a privilege and imposing a tax thereon applies to sales made in places where the business is prohibited and made a misdemeanor; that the tax statute and the statute prohibiting sales in a given territory are consistent and tend to effect the same purpose--that is, the prevention of the sale of intoxicating liquors therein. The court said: "The imposition of a tax upon an outlawed business is often more efficient in suppressing it than statutes making it a criminal offense." Again: "The question here involved has been before this court in two or more unreported cases, and in all of them it has been held that the tax could be collected. The decisions of all other courts upon the questions that have been called to our attention are to the same effect. In the case of Young-blood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654, it is said: 'If one puts the government to special inconvenience and costs by keeping up a prohibited business or maintaining a nuisance, the fact is a reason for discriminating in taxation against him; and if the tax be imposed on the thing which is prohibited, which constitutes the nuisance, the tax law, instead of being inconsistent with the law declaring the illegality, is in entire harmony with its whole purpose, and may sometimes be even more effectual.' *** The courts of last resort in a number of states have held that the fact that a business was prohibited, and license could not be obtained authorizing it, was no defense to an action to collect the tax imposed from one engaged in such business'--citing authorities.
In Carpenter v. State, 120 Tenn. 586, 113 S.W. 1042, it is held that the business of retailing liquors in any part of the state, whether it be where they can be lawfully sold or where the sale is prohibited by law, is made a privilege by statute and taxed, and any one engaged in this business, although in violation of a prohibiting statute, is liable for this tax.
It follows that the prosecution in the present case may be sustained under section 16, supra, of chapter 479, of the Acts of 1909, although it does not appear there is any place in Scott county, or even this state, where intoxicating liquors may be lawfully sold. It also follows, that the portions of chapter 479 quoted, in so far as they apply to the liquor traffic, were intended as parts of a system for prohibiting and suppressing it, and that the use of the copy of the record of the internal revenue collector in a prosecution under these sections is its use in a prosecution for the "violation of the laws of this state prohibiting the sale of intoxicating liquors," and therefore that the evidence indicated in chapter 384, supra, may be made available thereon.
While it is necessary under chapter 161, Acts of 1899, to prove a sale to some particular person, no such necessity exists under chapter 479, § 16, of the Acts of 1909, since the offense thereunder is exercising the business of retailing or wholesaling intoxicating liquors without first paying the taxes prescribed, and the fact of the maintenance of such a business may be proven by the possession of the internal revenue license. This was...
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State v. Andrews
...the privilege tax being fixed at certain sums. This court in a published opinion had held that the latter tax was valid. Diamond v. State, 123 Tenn. 348, 131 S.W. 666, cases cited. Notwithstanding this fact municipal authorities did not make any attempt to collect these taxes. The reason as......
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Waller v. Skelton
... ... action was not in fact taken under the statute even though he ... directed that the order show otherwise. Under such an ... admitted state of facts the Court of Appeals should have ... either dismissed the respondent's appeal or at most ... remanded the case to the Circuit Court of ... is not binding on the court or the parties.' The holding ... in the True case is to the same effect ... In ... Diamond v. State, 123 Tenn. 348, 363, 131 S.W. 666, ... 669, there was a plea in abatement to the indictment, which ... was made a part of the bill of ... ...
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Brinkley v. State
... ... possession of federal internal revenue license by one engaged ... in business within four miles of a schoolhouse where school ... is kept prima facie evidence of guilt under an indictment for ... violating the four-mile law. A similar statute was held valid ... by this court in Diamond v. State, 123 Tenn. 348, ... 131 S.W. 666. The general power of the Legislature to ... prescribe rules of evidence and methods of proof can no ... longer be doubted under modern authority. That this power has ... its constitutional limitations was stated in Diamond v ... State, supra. Such a ... ...
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Eastland v. Sneed
... ... to Circuit Court, Davidson County; M. H. Meeks, Judge ... Petition ... for certiorari to remove tax proceedings from the State Board ... of Equalizers for review by J. L. Eastl and others against R ... R. Sneed and others. To review dismissal of the petition on ... motion ... result in making the whole clause void, as depriving the ... taxpayer of a right without due process of law. Diamond ... v. State, 123 Tenn. 348, 362, 131 S.W. 666; Brinkley ... v. State, 125 Tenn. 371, 385, 143 S.W. 1120; Noe v ... Mayor and Alderman, 128 Tenn ... ...