Mills Wholesale Liquor Co. v. Zellmer, s. 13051
| Decision Date | 19 November 1980 |
| Docket Number | 13055,Nos. 13051,s. 13051 |
| Citation | 298 N.W.2d 523 |
| Parties | MILLS WHOLESALE LIQUOR COMPANY, a South Dakota Corporation, Plaintiff and Appellee, v. Steven J. ZELLMER, Secretary of Revenue, State of South Dakota, Defendant and Appellant, v. SIOUX FALLS WHOLESALE COMPANY, a South Dakota Corporation, Intervenor and Appellant. |
| Court | South Dakota Supreme Court |
William A. Bowen of Rice & Bowen, Aberdeen, for plaintiff and appellee.
John Dewell, Asst. Atty. Gen., Pierre, for defendant and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Kennith L. Gosch of Bantz, Gosch & Cremer, Aberdeen, for intervenor and appellant.
The trial court granted summary judgment in favor of Mills Wholesale Liquor, plaintiff-appellee (appellee), on its petition for declaratory judgment. Secretary of Revenue Steven J. Zellmer, defendant-appellant (Secretary), and Sioux Falls Wholesale, intervenor-appellant, appeal from that grant of summary judgment. We reverse.
Stanley L. Mills (Mills), doing business as Mills Wholesale Liquor, applied for a wholesale liquor license for 1979. A hearing was held before Secretary in Pierre. At that time Mills informed Secretary that he intended to transship liquor from Oklahoma. Secretary entered a "Memorandum Decision, Findings of Fact, Conclusions of Law, and Order" (Memorandum Decision) on March 29, 1979, in which Secretary issued a wholesale liquor license to Mills, and made a determination and interpretation of SDCL 35-4-47 * as it would apply to Mills. In his Memorandum Decision, Secretary stated: "Inasmuch as this is a serious matter I will rule on this at this time and will hold that SDCL (35-4-47) does not permit any transhipment (sic) from Mr. Mills' operation in Oklahoma to Mr. Mills' operation in South Dakota." Two of Secretary's Conclusions of Law were as follows:
V.
That the provisions of § 35-4-47 prevent the transhipment (sic) of alcoholic beverages from a wholesaler licensed in some other state to a wholesaler in this state.
VI.
That the provisions of § 35-4-47 require that a wholesaler licensed in South Dakota purchase alcoholic beverages only from distillers or wholesalers licensed under that chapter.
Secretary then ordered that Mills receive the license, but also ordered that he "purchase alcoholic beverages only from distillers or wholesalers licensed under Chapter 35-4." Mills did not appeal from that determination. Thereafter, Mills transferred his liquor license to appellee.
On September 19, 1979, appellee filed in the Fifth Judicial Circuit Court, Brown County, the county of its residence, a petition for declaratory judgment asking the trial court to enter a judgment:
1. Declaring and adjudicating the respective rights and duties of (appellee) under the Memorandum Decision, Findings of Fact, Conclusions of Law and Order entered by the Secretary of Revenue on March 29, 1979.
2. Declaring the Secretary of Revenue as without authority or jurisdiction to interpret legislation, particularly SDCL 35-4-47.
3. Declaring the non-existence of a "primary source law" in the State of South Dakota.
4. Declaring that under the statutory scheme of the South Dakota Code, (appellee) may purchase, transship and receive, alcoholic beverages from foreign wholesalers and other sources outside of the State of South Dakota for sale to retailers for resale in South Dakota.
5. Declaring such other rights, duties and obligations as the Court deems just and equitable.
On that same day Secretary filed a motion for change of venue and notice thereon. Alleging that the provisions of SDCL 15-5-2(2) applied so that the proper venue was Hughes County, his official residence, Secretary wanted the venue changed from Brown County to Hughes County. After a hearing, the trial court denied the motion.
Appellee made a motion for summary judgment, after which a stipulation for intervention was filed wherein both parties agreed to allow Sioux Falls Wholesale Company, which opposed the motion for summary judgment, to intervene. The trial court ultimately granted appellee's motion for summary judgment, declaring that appellee, as a licensed liquor wholesaler, was not prohibited by South Dakota law from purchasing, transshipping and receiving alcoholic beverages from foreign wholesalers outside of the State of South Dakota for sale to retailers for resale in South Dakota, and that SDCL 35-4-47, when considered with the other sections of SDCL Title 35, of which it is a part, does not establish a "primary source law" for the State of South Dakota. Appellants, Secretary and Sioux Falls Wholesale Company, claim that the trial court erred in denying Secretary's motion for change of venue. In denying the motion, the trial court determined that the proper venue was under SDCL 1-26-14, and therefore in Brown County. That statute, in pertinent part, reads as follows:
The validity or applicability of a rule may be determined in an action for declaratory judgment in the circuit court for the county of the plaintiff's residence, if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action.
Appellants, however, argue that the proper venue statute is SDCL 15-5-2(2), which reads, in pertinent part, as follows:
Actions for the following causes, or upon the following instruments, must be tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial:
(2) Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer(.)
" 'It is a well founded legal principle that when the language of the statute is clear, certain and unambiguous, there is no occasion for construction and the court's only function is to declare the meaning of the statute as clearly expressed in the statute.'...
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Moulton v. State, s. 14506
...lacked jurisdiction because the Commission's action was not a rule within the meaning of SDCL 1-26-1(7). See, Mills Wholesale Liquor Co. v. Zellmer, 298 N.W.2d 523, 525 (S.D.1980). In deciding this issue, we proceed with the following sequence: (1) Was the Commission's decision a rule? (2) ......