Fort Sumter Hotel v. South Carolina Tax Commission
| Decision Date | 01 August 1942 |
| Docket Number | 15449. |
| Citation | 21 S.E.2d 393,201 S.C. 50 |
| Parties | FORT SUMTER HOTEL v. SOUTH CAROLINA TAX COMMISSION et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Court of Charleston County; Wm. H Grimball, Judge.
Mandamus proceeding by the Fort Sumter Hotel against the South Carolina Tax Commission and others to require the return to the petitioner of certain stamped alcoholic liquors which had been seized on ground that they were contraband under the liquor laws of the state. From an order requiring the return of the seized property to the petitioner and restraining the defendants from offering any of the property at any public sale, the defendants appeal.
John M. Daniel, Atty. Gen., T. C. Callison, Asst. Atty. Gen., and Claude K. Wingate, of Columbia, for appellants.
Mitchell & Horlbeck and C. R. Burbage, all of Charleston, for respondent.
In this mandamus proceeding, the respondent was the petitioner in the court below and the appellants were the respondents therein. Perhaps confusion will be avoided if we refer in this opinion to the Fort Sumter Hotel as the appellee (although contrary to our usual custom) and to the other parties as the appellants.
This appeal is from the order of Judge Grimball dated January 24, 1942, requiring a return to the appellee of certain stamped alcoholic liquors, theretofore seized upon the charge that the same were contraband under the liquor laws of the state, the appellee having executed the bond required by statute, and hence claiming the right to such liquors pending the judicial determination in the appropriate action authorized by statute of the issue as to whether or not these liquors are in fact legally subject to forfeiture and confiscation.
A brief statement of the admitted facts of the controversy before the court will clarify the issues raised by the appeal. The appellee conducts a tourist hotel in the City of Charleston and on December 4, 1941, S. J. Pratt, State Constable, and one of the appellants, entered the hotel and seized the alcoholic liquors in question, the same being of the value of about $2,400. While these liquors bore all required federal and state revenue stamps they were seized by the constable because he deemed them contraband under the 1939 amendment to the 1935 Alcoholic Liquors Act (Acts 1935, p. 325, Acts 1939, page 303), which in brief provides that the possession of any alcoholic liquors whatsoever in a place of business shall be unlawful, and that a place of business includes any place where goods, wares or merchandise are sold or offered for sale; and it is also provided that all alcoholic liquors found in the possession of a person who has made an unlawful sale within 24 hours be declared to be contraband, and subject to seizure, confiscation and sale. Further reference to this amendment will hereinafter be made.
After the seizure by the constable, the liquors involved herein were turned over to Joseph M. Poulnot, sheriff of Charleston County, one of the appellants, who on January 5, 1942, caused to be published a notice to the effect that he had taken possession of several lots of mixed whiskeys seized by "duly authorized Constables" from a number of parties, including the appellee, Fort Sumter Hotel, giving a very general description of the liquors so seized as a whole, and stating that the same had been seized because the liquors were being kept for illegal purposes under the 1935 Liquor Act and all amendments thereto. And the notice further stipulates "that any persons claiming the same must appear and make such claim in writing within thirty (30) days from the date of the giving of this Notice, and give bond as provided by law or otherwise." (Emphasis added.) The notice further stated that the "said Articles" would be sold on February 4, 1942.
Immediately after this notice was given, to wit, on January 6, 1942, the appellee filed with the sheriff a duly itemized and verified claim in writing for the liquors which had been taken from it as aforesaid, claiming the same as the owner thereof, and with the claim was filed a bond with corporate surety, duly executed in the penal sum of $5,000, conditioned for the payment to the South Carolina Tax Commission, in case of the condemnation of the alcoholic liquors so seized, of the full value thereof "and all costs and expenses of the proceedings to obtain such condemnation, including a reasonable attorney's fee"; and the surety to the bond was duly approved by the clerk of the court of common pleas for Charleston County. Notwithstanding the execution and delivery of this bond, however, the sheriff, acting under the direction of the Tax Commission, declined to return the liquors to the appellee.
Thereupon this proceeding for mandamus was instituted upon the petition of the appellee setting forth the facts as above stated and the alleged applicable provisions of law. The appellants filed their answer and return to the petition, denying the appellee's right to the possession of the alcoholic liquors in question under the provisions of the statutes referred to in the petition, and alleging that such liquors could not be returned unless and until the court should determine that they were not in fact or in law contraband. A reply to the answer and return was filed by the appellee repeating its construction of the statutes involved. And upon the hearing before Judge Grimball he granted an order dated January 24, 1942, designated in the transcript as "writ of mandamus and restraining order." This order requires the return of the seized property to the appellee and also restrains the appellants "from offering at any public sale any of the seized property, the subject of this proceeding." From this order the appeal was taken as above stated.
The parties to this appeal were unable to agree upon the transcript of record, and an order of settlement was handed down by Judge Grimball, dated March 19, 1942, wherein he held that there was but one issue involved in the appeal, which was stated by him in accordance with appellee's contention, while the appellants contended that there were three issues, as stated by them; and hence they also appealed from the order of settlement. It is our view that the question as to what issues are raised by an appeal is one to be determined solely by this court, upon a consideration of the exceptions in the light of the record of the proceedings in the court below. Hence we think this order of settlement wherein Judge Grimball purported to determine what issues are involved in the appeal should be, and it is, reversed.
There are six exceptions and (eliminating the first one from our consideration at the moment) we think the following questions are raised by them; and each of these questions will be somewhat briefly discussed by us:
1. Was the appellee entitled to the return of the alcoholic liquors in question under the applicable statutes, having given the bond as therein required?
2. Was the appellee entitled to the remedy of mandamus?
3. Should the court in this mandamus proceeding have determined whether or not the liquors in question were actually contraband?
The determination of the first question above stated will really be decisive of the case, and to that end we must go more fully into the details of the applicable statutes.
The 1939 amendment to the Alcoholic Liquor Act of 1935, among other things, amends Section 15 of the original act (Acts 1935, page 325) by enlarging it so as to cover the possession in a place of business of stamped liquors, and expressly providing that "all alcoholic liquor found in places of business, as above defined, is hereby declared to be contraband and shall be subject to seizure, confiscation and sale, as is provided in Section 17 of this Act." And there is also a provision in another paragraph of Section 15 as amended as follows: "Provided, further, that such sale shall await and be governed by the event of the trial."
Reference to Section 17 of the original act will show that it is therein provided that for the purpose of confiscation of alcoholic liquors "the sheriff shall proceed as nearly as may be practicable under the provisions of Subdivision (9) Section 2527, Code of Laws of 1932," thus adopting by reference the procedure provided in the section mentioned.
And that procedure, stated with some abbreviation, is as follows The officer or person making the seizure shall first cause a list containing a particular description of the property seized to be prepared in duplicate, and shall have the same appraised in the manner required; and the officer or person shall then proceed to publish a notice for three weeks in writing describing the articles and stating the time and place and cause of their seizure "and requiring any person claiming them to appear and make such claim in writing within thirty (30) days from the date of the first publication of such notice." And it is then further provided that any person claiming the property "so seized as contraband within the time specified in the notice may file with the South Carolina Tax Commission a claim in writing, stating his interests in the articles seized, and may execute a bond to the South Carolina Tax Commission in a penal sum equal to double the value of said goods so seized, but in no case shall said bond be less than the sum of one hundred ($100.00) dollars, with sureties to be approved by the clerk of Court in the county in which the goods are seized, conditioned that in the case of condemnation of the articles so seized, the obligors shall pay to the South Carolina Tax Commission the full value of the goods so seized and all costs and expenses of the proceedings to obtain such condemnation, including a...
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