Reeves v. Bell

• Decision Date: 31 January 1941
• Citation: 147 S.W.2d 711,285 Ky. 300
• Parties: REEVES, Com'r of Revenue, et al. v. BELL, County Judge.
• Court: Kentucky Court of Appeals

147 S.W.2d 711

285 Ky. 300

REEVES, Com'r of Revenue, et al. v. BELL, County Judge.

Court of Appeals of Kentucky

January 31, 1941

Original proceeding in the Court of Appeals by H. Clyde Reeves Commissioner of Revenue, and others, against George Bell County Judge of Boyd County, for a writ of prohibition against defendant's requiring plaintiffs, other than named plaintiff, to deliver certain contraband whisky now in their possession to the sheriff of Boyd county.

Motion for writ of prohibition overruled and writ denied.

Hubert Meredith, Atty. Gen., and Earl S. Wilson, Asst. Atty. Gen for plaintiffs.

Hannah, VanSant & McKenzie, of Ashland, for defendant.

REES Chief Justice.

The plaintiffs, H. Clyde Reeves, Commissioner of Revenue, B. S. Wigginton, Edgar Kitchen, and R. E. Bateman, field representatives of the Department of Revenue, by this original proceeding in this court, seek to prohibit the defendant, George Bell, county judge of Boyd county, from requiring the plaintiffs Wigginton, Kitchen, and Bateman to deliver certain contraband whisky now in their possession to the sheriff of Boyd county. The facts alleged in plaintiffs' petition for a writ of prohibition, briefly stated, are these:

On or about November 2, 1940, plaintiffs Wigginton, Kitchen, and Bateman were informed that one Elbert Rigsby had stored certain unstamped contraband whisky in the residence of John Johnson, Sr., in Boyd county. An affidavit for a search warrant was made, and a search warrant was issued by a justice of the peace in Boyd county. The plaintiffs searched the premises of John Johnson, Sr., and there found and seized 49 cases of whisky which failed to bear the tax stamps required by section 4281c-4, Ky.Stats., 1940 Supp., and subsections 10, 13, and 18 of section 4281c, Carroll's Ky.Stats., 1936 edition. Four warrants for the arrest of Rigsby for violating the foregoing sections and section 2554b- 150, Ky.Stats., 1940 Supp., were issued, and Rigsby was arrested. Rigsby was tried in the Boyd county court November 27, 1940, and the proceedings are thus stated in the judgment of the court:

"Thereupon the defendant filed his written motion to quash the affidavit and search warrant issued thereon, and to suppress the evidence, which motion was ordered filed in this action, and also in Warrant No. 2 charging a violation of Section 2554b-150, Carroll's Kentucky Statutes.

"Thereupon counsel for the Commonwealth stated to the Court that the Commonwealth was not relying upon any evidence obtained by reason of a search warrant. Thereupon the Commonwealth introduced Johnny Johnson, who testified in its behalf.

"At the conclusion of the witness' testimony, the defendant filed his written motion to quash the warrant in this cause, and also Warrant No. 2 above referred to, because said warrants were issued in violation of Section 10 of the Constitution. The Court then heard argument by counsel for defendant on the motion to quash the warrant of arrest. At the conclusion of said argument the Commonwealth asked for a recess. Counsel for the Commonwealth of Kentucky later returned into Court, and moved the Court to dismiss Warrants Nos. 1 and 2, and Warrants Nos. 3 and 4, which charged a violation of Section 4281c-13, Carroll's Kentucky Statutes, without prejudice. The Court sustained the Commonwealth's motion to dismiss warrants Nos. 2, 3, and 4 above referred to, without prejudice, to which ruling of the Court the defendant objected and excepted. The Court overruled the Commonwealth's motion to dismiss Warrant No. 1 above referred to, to which ruling of the Court the Commonwealth excepted. The Court thereupon sustained the defendant's motion to quash Warrant No. 1 charging him with a violation of Section 2554b-150, Carroll's Kentucky Statutes, because there was no affidavit, oath, or affirmation to support same, to which ruling of the Court the Commonwealth excepted.

"It is therefore ordered and adjudged that the defendant be discharged from custody in each of the aforementioned warrants."

After entering this judgment the county judge entered an order adjudging that the whisky in the possession of the field representatives of the Department of Revenue, Wigginton, Kitchen, and Bateman, had been illegally seized, and ordering them to deliver it to the sheriff of Boyd county and that it be held by the sheriff subject to the further orders of the court. The Commonwealth excepted to the order and moved the court that the sheriff be put under bond in the amount of $1,000 to make proper accounting of the whisky, and that motion was sustained by the court. It is alleged in the petition that it was erroneous on the part of the county judge to order the plaintiffs Wigginton, Kitchen, and Bateman, who are duly qualified and bonded officers of the Commonwealth of Kentucky, to deliver the whisky which was legally in their custody to the sheriff of Boyd county, and if they are required to comply with this erroneous order and the sheriff fails to make proper accounting of the whisky they will be liable on their bonds and will be irreparably damaged by reason thereof. It is further alleged that unstamped whisky is declared by the Alcoholic Beverage Control Act, Ky.St.Supp. 1939, § 2554b-97 et seq., to be contraband, and that the Commonwealth of Kentucky is entitled to the custody and ownership thereof unless some person within 90 days after the trial in the county court establishes title or right to the possession thereof; that said whisky was properly stamped after it was taken into possession by said field representatives of the Department of Revenue, and if the defendant is permitted to require them to deliver it to the sheriff of Boyd county the Commonwealth will suffer irreparable injury as a result thereof. The plaintiffs pray that this court issue its writ of prohibition addressed to the Hon. George Bell, judge of the county court of Boyd county, temporarily prohibiting him from requiring the plaintiffs Wigginton, Kitchen, and Bateman to deliver the whisky now in their possession to the sheriff of Boyd county, and that on final hearing it be adjudged that the defendant is acting erroneously and without authority, and that a permanent writ of prohibition be issued.

Chapter 15, section 7, the Acts of the General Assembly of 1940, now section 2554b-151, Ky.Stats., 1940 Supp., declares contraband "any spirituous, vinous, or malt liquors in the possession of anyone not entitled to possession of the same under the provisions of...