George Benz Sons v. Ericson
| Decision Date | 30 July 1948 |
| Docket Number | No. 34703.,34703. |
| Citation | 34 N.W.2d 725,227 Minn. 1 |
| Parties | GEORGE BENZ SONS, Inc. v. ERICSON (ED. PHILLIPS & SONS CO. et al., Interveners). |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Gustavus Loeving, Judge.
Action involving constitutionality of statute by George Benz Sons, Inc., against Dudley C. Ericson, Liquor Control Commissioner of Minnesota. Ed. Phillips & Sons and others and Garland Wine Company intervened. From an order denying motion for temporary injunction and vacating restraining order issued at commencement of proceedings, the plaintiff and the first named interveners appeal.
Order reversed.
Paul C. Thomas, of St. Paul, for appellant.
Samuel H. Maslon, of Minneapolis, for intervener-appellant, Ed. Phillips & Sons Co.
Wheeler & Burns, of Duluth, for intervener-appellant, Northern Liquor Co.
Cummins, Cummins & Christianson, of St. Paul, for intervener-appellant, Griggs Cooper & Co.
Robert Greenberg, of Minneapolis, for intervener-appellant, Famous Brands, Inc.
William C. Green, of St. Paul, of counsel for appellants.
J. A. A. Burnquist, Atty. Gen., and Ralph A. Stone, Asst. Atty. Gen., for respondent.
Fred P. Memmer and Lewis L. Anderson, both of St. Paul, amici curiæ.
Appeal by plaintiff and by interveners (hereinafter named) from an order (1) denying their motion for a temporary injunction, and (2) vacating a restraining order issued at the commencement of these proceedings.
This action was commenced when George Benz Sons, Inc., a Minnesota corporation engaged in the business of manufacturing and wholesaling intoxicating liquors as defined by M.S.A. § 340.07, sought and obtained from the district court of Ramsey county an order dated December 20, 1947, temporarily restraining defendant, Dudley C. Ericson, as state liquor control commissioner, from enforcing or attempting to enforce L.1947, c. 528, § 1, clause (c), in the administration of the state liquor control laws pending court decision in the matter. This order also directed defendant to show cause why the temporary restraining order should not be continued in full force and effect until final judgment in an action commenced by plaintiff against defendant at the time the temporary restraining order issued and in which plaintiff sought to have L.1947, c. 528, § 1, clause (c), declared unconstitutional and void. Plaintiff also noticed for hearing a motion for an order restraining defendant from enforcing or attempting to enforce L.1947, c. 528, § 1, clause (c), or altering administrative procedures because of that section of the statute. Prior to the hearing on this motion, complaints in intervention were filed by the following concerns engaged in the business of manufacturing and selling intoxicating liquors at wholesale: Ed. Phillips & Sons Company, a Minnesota corporation, with its principal place of business in Minneapolis; Northern Liquor Company, a Minnesota corporation, with its principal place of business in Duluth; Griggs Cooper & Company, a Delaware corporation, with its principal place of business in St. Paul; and Famous Brands, Inc., a Minnesota corporation, with its principal place of business in Minneapolis. By order of March 27, 1948, the complaint in intervention of the Garland Wine Company, a Minnesota corporation, with its principal office and place of business in Minneapolis, was dismissed without costs. With respect to the other interveners, issues were joined by answers filed in each instance by defendant. (This procedure is authorized by M.S.A. § 544.13, and cases cited at pp. 240 and 241 of 33 M.S.A.) In addition to the verified complaints to which we have referred, the record before us contains affidavits by Paul C. Thomas, attorney for plaintiff; George W. Benz, president and one of the directors and managing officers of plaintiff; Milton W. Griggs, president and one of the directors and managing officers of Griggs Cooper & Company; and Albert C. Schwaab, president of Garland Wine Company.
The position of plaintiff and interveners from the inception of the litigation was that the statute in question is unconstitutional because it is violative of the due process clause of Minn.Const. art. 1, § 7, M.S.A.; of Id. art. 4, § 33, insofar as that section prohibits class or special legislation; of Id. art. 1, § 2, insofar as that section calls for equal protection of laws; and of U.S.Const. Amend. XIV, § 1, insofar as that section guarantees the equal protection of the laws. At the oral argument, counsel for plaintiff and interveners conceded that plaintiff's and interveners' original contention that the statute is violative of the due process clauses does not apply, and that the principal question now for consideration is whether the act violates the equal protection clauses of the state and federal constitutions.
Prior to the adoption of the section of the statute which plaintiff and interveners have attacked, M.S.A. § 340.11, subd. 12, provided as follows:
Intoxicating liquor is defined by M.S. A. § 340.07, subd. 1, as follows:
"The terms `intoxicating liquors' and `liquor' when used in sections 340.07 to 340.40 mean and include ethyl alcohol and include distilled, fermented, spirituous, vinous, and malt beverages containing in excess of 3.2 per cent of alcohol by weight."
The amendment to § 340.11, adopted by virtue of L.1947, c. 528, adds as subd. 12 (c) the following:
The statute contains no definition of "wine," but the liquor control commissioner has defined "wine" in liquor regulation No. 1, 1944, § ID, as follows:
"The term `wine' means (1) wine as defined in the United States Internal Revenue Act of 1890 [26 Stat. 131] as amended, and in accordance with the 1937 United States Internal Revenue Regulation No. 7 pertaining to the production and fortification of wine and amendments thereto and (2) other alcoholic beverages not so defined, but made in the manner of wine, including sparkling and carbonated wine, wine made from condensed grape must, wine made from other agricultural products than the juice of sound ripe grapes, imitation wine, compounds sold as wine, vermouth, cider, perry and sake, in each instance only if containing not less than 7 per centum, and not more than 24 per centum of alcohol by volume." (The foregoing is more clearly defined in regulation No. 14, 1944, which clarifies the standards.) Following the enactment of the liquor control act of 1934, manufacturers and wholesalers licensed under § 340.11, subd. 12, were permitted to manufacture and sell at wholesale all beverages included in the statutory definition of "intoxicating liquor" as set out above, including wine.
The license of plaintiff to manufacture and wholesale intoxicating liquors expired on December 22, 1947. Prior to the expiration of this license and on December 5, 1947, plaintiff applied to defendant, as state liquor control commissioner, for a license as of December 22, 1947, and for one year thereafter, to manufacture and sell at wholesale the intoxicating liquors defined in § 340.07, including wine containing not more than 24 percent of alcohol by volume, as defined by regulation No. 1, as it had previously done under the annual licenses from the various liquor control commissioners of the state. The application was accompanied by appropriate bond and certified check to cover the license fee. The application for license...
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Mid-West Wine Co., Inc. v. Ericson
...which could be decided. Second, L.1947, c. 528, is declared unconstitutional by this court in the companion case of George Benz Sons, Inc. v. Ericson, Minn., 34 N.W.2d 725, filed herewith. In view of that holding, it as apparent on the face of plaintiff's complaint that it can have no cause......