One Hundred Second Cavalry Officers' Club v. Heise
| Decision Date | 09 July 1942 |
| Docket Number | 15441. |
| Parties | ONE HUNDRED SECOND CAVALRY OFFICERS CLUB et al. v. HEISE, Sheriff. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Court of Richland County; G. Duncan Bellinger, Judge.
Suit for claim and delivery by the One Hundred Second Cavalry Officers Club, Leo J. Finley, Steward, against T. Alex Heise, Sheriff of Richland County, to recover possession of whisky seized by the sheriff as contraband. Judgment for the defendant, and the plaintiff appeals.
The One Hundred Second Cavalry (for the purpose of this appeal) is an unincorporated association, a unit of the armed forces of the United States Army, with its place of residence at Fort Jackson, South Carolina, where said unit has been stationed for over a year. Under the regulations of the South Carolina Tax Commission wholesale whiskey dealers were at the time of the sale of this whiskey permitted to deliver unstamped liquor on the reservation or liquor with State stamps cancelled thereon, and that said whiskey here involved was so delivered to Fort Jackson with the State stamps thereon cancelled. After the liquor was so delivered, the One Hundred Second Cavalry was ordered upon maneuvers and the whiskey was placed in charge of Finley and ordered to be removed from the Fort on account of inadequate protection by way of guards, buildings, and the like. At the time of the removal of the whiskey upon which containers the stamps had been cancelled, the same was carried to the home of Finley where it was securely stored, admittedly off the Fort Jackson Reservation within Richland County, and when the One Hundred Second Cavalry returned, the whiskey was still stored at this place. Some of the whiskey had been missing and Finley reported the matter to the Sheriff of Richland County to ascertain who was removing the whiskey. The Sheriff reported the matter to the South Carolina Tax Commission and the Tax Commission ordered the whiskey seized and this action is an action to recover possession of the whiskey. For the purpose of this appeal the allegations of the complaint are admitted by the demurrer and the facts therefore, are not in dispute.
C. T. Graydon and J. Bratton Davis, both of Columbia, for appellant.
John M. Daniel, Atty. Gen., T. C. Callison and M. J. Hough, Asst. Attys. Gen., and Claude K. Wingate, of Columbia, for respondent.
A quantity of alcoholic liquor was seized by the Sheriff as contraband under the law.
In addition to the facts shown in the statement, which will be reported, it appears by the record that the Cavalry Club is composed of about seventy members; that the liquor consists of more than sixty cases of whiskey valued at $1,426.62, exclusive of the State stamp tax, in the sum of $281.28, which was not paid. By virtue of the regulations of the South Carolina Tax Commission, the appellant was empowered and authorized to buy from wholesale liquor dealers the whiskey for delivery to Fort Jackson, free of the stamp tax to the State, which was actually done in this instance, and it was stored at Fort Jackson for the use of the club members.
The demurrer to the complaint was heard and sustained by his Honor, Judge G. Duncan Bellinger, who by his order, dated March 16, 1942, held that the complaint should be dismissed and ordered that the sheriff proceed with the advertisement and public sale of the alcoholic liquors in question. The regulations of the South Carolina Tax Commission referred to was one permitting the wholesaler to make sales of such liquor to the officer's clubs at Fort Jackson, without payment of the State liquor tax but the regulation required that the liquors be delivered by the wholesaler to the club only at Fort Jackson reservation. It was agreed that the physical stamps required by the Act were on the liquors in question, but that the same had been cancelled, and the amount of the taxes returned to the wholesaler who had paid for the tax stamps.
This suit is one for claim and delivery of personal property, in which the plaintiff made the required affidavit and demanded judgment for the possession of the whiskey, or its value.
It was stated in argument, and we may take judicial cognizance of the facts that Fort Jackson is one of the largest Government reservations in the United States for the concentration and training of the armed forces of the Nation during the present world wide war in which the civilized armies are engaged for the freedom of mankind. Also that the officers of this club, sometimes known as the Essex troops, are gentlemen of honor and are law-abiding soldiers.
The crux of the appeal seems to be whether the State, through the Tax Commission, is estopped from asserting that the defendant Finley held unlawful possession of the liquor.
The authority of the Tax Commission does not extend to the right to modify the law of the State in order to suspend the law and permit whiskey to be kept in possession without affixing the stamps on the container, as required by the Act of 1935, Sec. 6; and all unstamped liquor is contraband under Section 17 of the Act, approved May 14, 1935, 39 St. at Large page 325, and Act 1937, 40 St. at Large, p. 210. All such contraband alcoholic liquor found in the possession of any one within the State not having affixed to the bottle or container the stamps required are declared to be contraband and subject to seizure and sale according to law. Section 1829 (17) of 1938 Supplement to the Code of Laws of South Carolina 1932. By the Act of May 20, 1939, page 303 et seq., of the Acts of 1939, the terms of the liquor law are further amended by providing that the Tax Commission may refund the cost of the stamps where the goods are damaged and unfit for sale, or are returned to the manufacturer or jobber.
No power or authority is conferred upon the Tax Commission to legislate in regard to the tax on liquor, nor to adopt any regulation inconsistent with the provisions of this Act or any law of this State, nor to modify the law in any way. The penal provisions of this law have been upheld and enforced over and over again by this Court and no sufficient reason is shown to exist whereby the administrative provisions of the law in regard to the payment of the tax, and in regard to affixing the stamps upon the bottles or containers should not be enforced, or should be relaxed or modified. While this may be a case of apparent hardship there is a familiar saying that hard cases make bad law, sometimes, and it would now do violence to the law itself to seek a way out, when the plain mandate of the liquor law has not been complied with. A case of equal severity is found in State v. Manos, 179 S.C. 45, 183 S.E. 582, where the issues were raised that the State is estopped to prosecute the defendant because it failed to furnish the stamps on application therefor and that the defendant did not intend to violate the law. This Court held in that case that when the defendant violated the provisions of the Statute by...
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