Petition of Carter

• Decision Date: 02 July 1949
• Citation: 222 S.W.2d 11,188 Tenn. 677
• Parties: Petition of CARTER, Sheriff of Greene County.
• Court: Tennessee Supreme Court

222 S.W.2d 11

188 Tenn. 677

Petition of CARTER, Sheriff of Greene County.

Supreme Court of Tennessee.

July 2, 1949

Error to Circuit Court, Greene County; Shelburne Ferguson, Judge.

Proceeding by D. N. Carter, sheriff of Greene County for authority to sell certain intoxicating liquors in his possession. From an adverse order, the petitioner appeals.

Reversed and remanded with directions.

Milligan & Haynes and B. B. Fraker, Greeneville for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

NEIL Chief Justice.

This appeal involves the right of the Sheriff of Greene County to sell certain intoxicating liquors in his possession pursuant to Chapter 127 of the Public Acts of 1947.

On April 17, 1947, police officers of the City of Greeneville captured 604 pints of Fleshmans blended whisky and 32 fifths of Seagrams 7 Crown whisky upon which Federal Tax had been paid. The whisky was later delivered by these officers to the Sheriff of Greene County, as required by law, who executed a receipt therefor showing the kind and quantity of whisky so delivered and received and the name of the person from whom it was seized. On June 10, 1948, at a regular term of the Circuit Court of Greene County the Sheriff petitioned the court, showing in his petition all intoxicating liquors in his hands as required by Code Section 11230, including the whisky above mentioned, and praying for an order of court authorizing the sale of liquors in accordance with the provisions of Chapter 127 of the Public Acts of 1947.

The trial court denied the petition, holding 'that said Act is unconstitutional in the following particulars:

'1. Because it is in conflict with and inconsistent with the dry laws of the State of Tennessee and particularly is this true since Greene County is a dry county.

'2. Because it would work a wrong and hold the Court and the officers called upon to carry out the orders of the Court up to public ridicule and shame in that it places the Court and Sheriff of the County involved in the repugnant and detestable position of, in one proceeding, trying, convicting, and punishing a party for having the same liquor which, in a later proceeding, the same Court orders the same Sheriff to possess, transport, and sell the same liquor and appropriate the money realized therefrom to county or city purposes.

'3. Because said act takes and appropriates said property without due process of law. It provides for the appropriation of said property without giving the owner of the property his day in court.

'4. Because it singles out for sale only intoxicating whisky bearing 'Federal Stamps'.'

The first assignment of error is as follows: 'The Court erred in raising, on his own motion, and considering and passing upon the constitutionality of Chapter 127 of the Public Acts of Tennessee for 1947, no such issue having been raised by any party in interest.'

Other assignments of error are argumentative of the appellant's contention that the Act is constitutional and that the trial court committed error in refusing to comply with its provisions.

While the first assignment is not without merit we think it is subordinate to the all important question made on this appeal, that is the constitutionality of the Act of 1947. We therefore pretermit it for the reason that it is not determinative of the ultimate rights of the appellant.

The Act which the learned trial judge has declared invalid amends Sections 11232 and 11233 of the official Code and provides for the sale of intoxicating liquors bearing a federal Tax Stamp which have been seized in dry territory by officers of the law. All such sales are made pursuant to 'an order upon the minutes [of the court] directing the Sheriff to dispose of such liquors by sale to any lawful retailer of liquor in counties wherein the sale of liquor has been legalized' etc. 'The court ordering the sale is authorized and empowered to prescribe the manner or receiving bids and the delivery of the liquor to the lawful purchaser, who shall be required to affix state liquor stamps thereon.' We deem it unnecessary to quote further provisions which provide for the proper allocation of all funds derived from the sales so authorized, payment of costs and expenses incident thereto.

There is nothing in our constitution placing any limitation upon the Legislature in the enactment of laws to prohibit or regulate the sale, possession, and transportation portation of intoxicating liquors. In a comparatively recent case, McCanless, Com'r, v. Klein, 182 Tenn. 631, 638, 188 S.W.2d 745, 748, Mr. Justice Chambliss said: 'It is difficult to conceive of a regulation of the sale and distribution of intoxicating liquor which...