Jolliff v. State, 45155

• Decision Date: 28 October 1968
• Docket Number: No. 45155,45155
• Citation: 215 So. 2d 234
• Parties: James JOLLIFF, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 234

215 So.2d 234

James JOLLIFF, Jr. v.STATE of Mississippi.

No. 45155.

Supreme Court of Mississippi.

Oct. 28, 1968.

William E. Miller, Jr., Jackson, for appellant.

Joe T. Patterson, Atty. Gen. by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

ROBERTSON, Justice:

The appellant, James Jolliff, Jr., was indicted by the grand jury and convicted in the Circuit Court of Wilkinson County, of wilfully, unlawfully and feloniously attempting:

'(T)o impede and intimidate B. F. Blakeney, a duly appointed, qualified and acting enforcing agent and officer of the Alcohol Beverage Control Division of the State Tax Commission of the State of Mississippi, in the discharge of his lawful duty as such enforcing agent and officer of said Alcohol Beverage Control Division, in checking and inspecting the beer license and beer stock of Gladys Davis, doing business as Gladys' Cafe, in the Town of Woodville, Wilkinson County, Mississippi, by then and there placing himself in front of said B. F. Blakeney and physically blocking and impeding said Blakeney's every effort to legally inspect and check the beer license issued said Gladys Davis and check the beer stock of said Gladys Davis then and there in the said cafe operated by her in said Town of Woodville.'

He was sentenced to serve a term of two years in the state penitentiary and to pay a fine of $500.However, the sentence to the penitentiary was suspended and appellant was placed on probation for a period of five years.

Inasmuch as the appellant had been elected a supervisor of Wilkinson County in District One thereof during the interim between the commission of the offense and his trial, and had entered upon the duties of the office, the circuit court removed him from the office of supervisor in accordance with the provisions of Section 4053 Mississippi Code 1942 Annotated (1956).

The appellant urges this Court to reverse his conviction and reinstate him in the office of Supervisor, District One, Wilkinson County.

The appellant contends that the agents of the Alcoholic Beverage Control Division of the State Tax Commission did not have the right, without a valid search warrant, to go behind the counter and inspect the beer license and beer stock of the cafe owner.

The facts are these.About 1:15 p.m. on September 5, 1967, B. F. Blakeney and James Sumrall, enforcing agents and officers of the Alcoholic Beverage Control Division of the State Tax Commission, entered the cafe known as Gladys' Cafe in the Town of Woodville, Mississippi, for the purpose of checking the beer license to see whether it was in date and inspecting the beer stock to determine whether it was Mississippi-taxed beer.Agent Sumrall went behind the counter and began to check the beer stored in coolers beneath the counter.Agent Blakeney attempted to follow Sumrall behind the counter through an opening in it.

The appellant, James Jolliff, Jr., tapped Agent Blakeney on the shoulder and asked him if he had a search warrant, and, upon being assured by Blakeney that he did not have a search warrant and did not need one, Joliff advised Blakeney that he could not go behind the counter and that he would have to get out of the cafe.There is some dispute in the testimony as to whether or not Jolliff, in blocking Blakeney's attempt to go behind the counter, had physical contact with him.Blakeney testified that Jolliff placed his hand on his right shoulder; Sumrall testified that Jolliff pushed Blakeney back.Jolliff testified that he did not touch Blakeney.Blakeney placed Jolliff under arrest for interfering with an officer in the discharge of his lawful duties, and he later was indicted by the grand jury for this offense.

This was a routine inspection which agents and employees of the Tax Commission were in the habit of making to determine primarily whether or not the tax laws of the State were being violated.The principal duty of the Tax Commission, of course, is to collect taxes due the State, and the Commission has been granted certain rights and powers by the Legislature to aid it in enforcing these tax laws.

It is not suggested nor contended by the State that Officer Blakeney or Sumrall had a search warrant, nor, for that matter, that probable cause existed for the issuance of a search warrant.As agents of the State Tax Commission, they were about their business of routinely inspecting privilege licenses, and beer, wine, and whiskey stocks, to see if these intoxicating beverages had escaped Mississippi taxation.

We do not think that it could be seriously contended that the State did not have the right or power to impose reasonable conditions upon the issuance of a privilege license to sell any intoxicating beverage.

The general rule is stated very succinctly in 33 American Jurisprudence 371-72 Licenses Section 52(1941):

'As a general rule, a state or governmental authority which has power to deny a privilege altogether may grant a license therefor upon such conditions, not requiring the relinquishment of constitutional rights, as it sees fit to impose, and the person to whom the license is granted takes it upon such conditions.'

This is particularly true with reference to the traffic in all kinds of intoxicating beverages.Such beverages when used to excess can be and frequently are detrimental to the health and welfare of the people generally.Excessive use of such intoxicating beverages is the catalytic agent triggering the commission of many crimes.Such excessive use is at the bottom of many of the miseries afflicting mankind.

The late Justice Alexander, writing for this Court in Stone, State Tax Commissioner v. Farish, 199 Miss. 186, 23 So.2d 911(1945), beautifully expressed the logic of reposing in the Legislature, as the representative of all the people, the undoubted right, under the police power, to regulate, control, and impose conditions upon the manufacture, sale, and use of intoxicating beverages.He stated the thought of the Court in these graphic words:

'Until the passage of Chapter 171,Laws 1934, the sale of intoxicating liquors, including beer, was forbidden.By that act, the sale of beer of an alcoholic content not exceeding four percent by volume was conceded.The conditions under which such business was vouchsafed reflected a legislative policy, judicially recognized as promoting the general welfare, that there be, if not an outlawry, a controlled restraint.The controversy here illustrates the conflict between the judgment of the people expressed through their Legislature, which sees in the business a menace to the purposes of the Constitution expressed in its preamble, and the will of the individual, who, under the banner of its bill of rights, makes assault upon these statutes.The traffic, for reasons which the courts have never questioned, has been put upon legislative leash.More than this, the citizens of each county have been conceded the right to foster or forbid its traffic at their will.It would seem both practical and logical that if the commodity itself is beholden to the people, and paroled to its judgment or caprice, its commerce could remain submissive to the legislative judgment which has set it at large upon its good behavior.

'Those who would avail of the legislative privilege of engaging in its sale accept the privilege under the conditions attached to its exercise.'Id. at 196, 23 So.2d at 913.(Emphasis added).

This Court long ago in Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873(1910), decided that, according to the common understanding, the term 'alcoholic liquors' does include wine and beer.The Court said:

'There are alcoholic drinks which are known to the law to be intoxicating.

Within this class are alcohol, wine, beer, ale, porter, whisky, brandy, gin, rum, and perhaps others.Such liquors, according to the common understanding, are intoxicating.The courts take judicial notice of the fact that they are alcoholic liquors, and will produce intoxication when drunk to excess.'Id. at 248, 52 So. at 874.(Emphasis added).

However, this does not mean that the Legislature cannot limit its meaning as the term is used by it in particular legislation.

The Legislature did limit the meaning of the term 'alcoholic beverage' in the Local Option Alcoholic Beverage Control Law,Sections 10265-01 through 10265-40 Mississippi Code 1942 Annotated (Supp.1966), when it said:

'The words 'alcoholic beverage' mean any alcoholic liquid capable of being consumed as a beverage by a human being, but shall not include wine containing not more than four per cent (4%) of alcohol by weight and shall not include beer containing not more than four per cent (4%) of alcohol by weight.'§ 10265-05.(Emphasis added).

In that law, the Legislature did grant the right to the State Tax Commission to make administrative inspections, when it used these words:

'(a) The State Tax Commission, under its duties and powers with respect to the Alcoholic Beverage Control Division, therein, shall have the following powers, functions and duties:

'(11) To inspect, or cause to be inspected, any premises where alcoholic liquors intended for sale are manufactured, stored, distributed or sold, and to examine, or cause to be examined all books and records pertaining to the business conducted therein.'§ 10265-17.(Emphasis added).

However, we have been unable to find in the Light Wines and Beer Act, Sections 10207-10265 Mississippi Code 1942 Annotated (1952) and (Supp.1966), any similar grant of authority by the Legislature.

It is true that Section 10223, which is very lengthy, contains this language:

'It shall be the duty of all peace officers to enforce within their...