Feldman v. South Carolina Tax Commission
| Decision Date | 04 June 1943 |
| Docket Number | 15548. |
| Citation | 26 S.E.2d 22,203 S.C. 49 |
| Parties | FELDMAN v. SOUTH CAROLINA TAX COMMISSION et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Court of Clarendon County; Wm. H. Grimball Judge.
Certiorari proceeding by Ben Feldman against the South Carolina Tax Commission and others to review action of the Commission in revoking petitioner's license as a retail liquor dealer. From a judgment setting aside order of the Tax Commission revoking the license, the Tax Commission and others appeal.
Claude K. Wingate, of Columbia, for appellants.
C T. Graydon and F. Ehrlich Thomson, both of Columbia, for respondent.
On October 30, 1942, a citation was issued by the South Carolina Tax Commission to Ben Feldman, a regularly licensed retail liquor dealer, to show cause why his license should not be revoked for an alleged sale of alcoholic liquors to one LeRoy Sessions, a minor, on October 7, 1942.
The sale was made from the respondent's liquor store located on Main Street in the town of Summerton.
A hearing was held on the rule on November 20, 1942, at which time the respondent appeared in person, and was represented by counsel. At the commencement of the hearing the respondent entered the admission that on the day named in the citation his clerk, John Rhett Mouzon, who was in charge of the store, "sold to Clyde Sessions, a negro boy, who according to the records of the Bureau of Vital Statistics, was born on October 24, 1925, one-half pint of gin for 75¢." Although this boy is named in the citation as LeRoy Sessions, and in the admission as Clyde Sessions, it appears that there is no question as to his identity. So far as the record shows he was known by both names.
Following this admission, testimony was introduced, upon a consideration of which the Commission concluded as a fact that the manager of the store who made the sale knew that LeRoy Sessions was under the age of twenty-one years. The Commission thereupon issued its order, of date November 20, 1942, revoking the respondent's license, effective December 1, 1942.
The law provides no mode of procedure for appeal from the order of the Tax Commission revoking the license of a retail liquor dealer. It is generally held, however, that the method of reviewing the action of a board or tribunal in revoking a liquor license is by writ of certiorari, upon the theory that while such bodies do not exercise the "judicial power of the state," as that phrase is used in conferring judicial power upon the courts of the state, they do exercise a quasi judicial power in such matters. Annotation, Ann.Cas.1917A, 1024. Upon the filing of the order of revocation, Mr. Feldman presented his petition to a Judge of the Circuit Court praying, upon stated grounds, that the order of the Commission be set aside, and obtained a writ of certiorari. The Tax Commission made due return thereto, and certified and transmitted to the Circuit Court the complete record of the proceedings taken before it, including all of the testimony.
In the citation issued against Feldman, he was simply charged with making an unlawful sale to a minor. It was not charged that the sale was "knowingly" made, and this was one of the issues presented to the Circuit Court on certiorari necessitating a construction of the applicable law.
The pertinent provisions of the statute (Sec. 1840, 1942 Code) follow:
It will be noted that the first clause in that portion of the section from which we have quoted does not contain the word "knowingly," nor words of like import. The offense is made to consist solely in the fact of a sale of alcoholic liquors to a minor. In the last provision quoted, the statute prohibits any retail dealer from "knowingly" selling liquor to a minor.
Emphasizing the apparent contradiction and inconsistency of these two provisions of the statute, the respondent, Feldman, contends that the Act in this respect is ambiguous and requires judicial consruction. And it is argued that if there be a doubt as to the proper construction, that doubt must be resolved in favor of the citizen against the state; and, further, that there being a conflict between the provisions of Section 1840, the last provision in order of arrangement must prevail. This being a penal statute, it should be strictly construed. Jackson v. South Carolina Tax Commission, 192 S.C. 350, 6 S.E.2d 745.
In the consideration of conflicting provisions in a statute, the great object to be kept in view is to ascertain the legislative intent, and a construction which best secures the rights of all the parties affected has been held to be the proper construction. In accordance with the principle that the last expression of the legislative will is the law, where conflicting provisions are found in the same statute, or in different statutes, the last in point of time or order of arrangement prevails. State v. Lewis, 141 S.C. 207, 139 S.E. 386; State v. Brown, 154 S.C. 55, 151 S.E. 218; 59 C.J. § 596, p. 999. However, this is purely an arbitrary rule of construction and is to be resorted to only when there is clearly an irreconcilable conflict, and all other means of interpretation have been exhausted.
It appears here that we have two provisions in the same statute which are clearly repugnant to each other. A careful examination of the entire Act furnishes no light which enables us to harmonize and reconcile the two inconsistent clauses. Therefore, resort must be had to the rule above stated, and we conclude that the last expression of the legislative will prevails. It follows that in order to convict under this statute, or to revoke a liquor dealer's license, it must be shown that a sale of alcoholic liquors was "knowingly" made to a minor.
The Circuit Court in our opinion was correct in adopting this construction. That Court found as a matter of fact that the respondent through his store manager made a sale of alcoholic liquors to LeRoy Sessions, a minor. But it set aside the order of the Tax Commission revoking the license, upon the ground that the record fails to show sufficient evidence of knowledge on the part of the salesman that the boy was a minor. In this holding, we think the Circuit Court fell into error.
A writ of certiorari cannot be made a substitute for an appeal or writ of error, as seems to have been done in this case. We have held in numerous cases that this Court on writ of certiorari will confine its review to the correction of errors of law only, and will not review the findings of fact of an inferior Court or body except when such findings are wholly unsupported by the evidence. McKnight v Smith, 182 S.C. 378, 189 S.E. 361; Young v. Sapp, 167 S.C. 364, 166 S.E. 354; Smith v. Saye, 130 S.C. 20, 125 S.E. 269; State v. State Board of Canvassers, 86 S.C. 451, 68 S.E. 676. Judges of the Courts of...
To continue reading
Request your trial
-
Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue
...to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with." Feldman v. S.C. Tax Comm'n , 203 S.C. 49, 57, 26 S.E.2d 22, 25 (1943) (citation omitted). Therefore, absent a fundamental right or suspect class, as with Appellant's equal protectio......