State ex rel. Battle v. Hereford

• Decision Date: 05 November 1963
• Docket Number: No. 12277,12277
• Citation: 148 W.Va. 97,133 S.E.2d 86
• Parties: STATE of West Virginia ex rel. G. Thomas BATTLE, State Tax Commissioner, v. John W. HEREFORD, Judge of the Circuit Court of Cabell County, West Virginia, et al.
• Court: West Virginia Supreme Court

Page 86

133 S.E.2d 86

148 W.Va. 97

STATE of West Virginia ex rel. G. Thomas BATTLE, State Tax Commissioner, v. John W. HEREFORD, Judge of the Circuit Court of Cabell County, West Virginia, et al.

No. 12277.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 1, 1963.

Decided Nov. 5, 1963.

Syllabus by the Court.

1. A statute which provides for a thing to be done in a particular manner or by a prescribed person or tribunal implies that it shall not be done otherwise or by a different person or tribunal; and the maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies to such statute.

2. To warrant the appointment of a receiver, the person seeking such appointment must show first that he has a clear right to the property itself, or that he has some lien upon it, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim; and secondly that possession of the property by the possessor was obtained by fraud, or that the property itself, or the income arising from it, is in danger of loss from the neglect, waste, misconduct or insolvency of the possessor.

3. When the remedy at law is plain, complete and adequate a court of equity is without jurisdiction to grant injunctive relief.

4. The writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy or, having such jurisdiction, exceeds it legitimate powers.

C. Donald Robertson, Atty. Gen., Edward B. Simms, Asst. Atty. Gen., Marshall G. West, Pikeville, William F. Carroll, Louise M. Barr, Charleston, for relator.

Beckett & Burford, R. H. Burford, Jenkins & Jenkins, Huntington, for respondent, American Cigarette Service, Inc. HAYMOND, Judge.

This is an original prohibition proceeding instituted in this Court on September 11, 1963. The petitioner, G. Thomas Battle, State Tax Commissioner of West Virginia, seeks a writ to prohibit the defendants, Honorable John W. Hereford, Judge of the Circuit Court of Cabell County, West Virginia, W. Merton Prunty, Special Receiver for American Cigarette Service, Inc. and American Cigarette Service, Inc., from enforcing, executing or carrying out, subject to certain specific exceptions, the provisions of an order entered by the Circuit Court of Cabell County on September 4, 1963, in a civil action instituted by the state tax commissioner against American Cigarette Service, Inc. on August 30, 1963, then pending in that court, by which order the defendant W. Merton Prunty was appointed Special Receiver for the defendant American Cigarette Service, Inc., for the purpose of operating its business with authority to make all reasonable business decisions in connection with and concerning its management and affairs and to take possession of all cigarette machines then in the possession of the state tax commissioner, which had been seized from American Cigarette Service, Inc., pursuant to Chapter 11, Article 17, Section 27, Code, 1931, as amended, except such machines as the commissioner should decide to hold for the purpose of determining any tax liability or as necessary evidence in any criminal prosecution, and to take possession of all moneys and cigarettes in such machines, except cigarettes which bore a fraudulent or false tax meter stamp impression, and to perform certain other acts in connection with the operation of the business of American Cigarette Service, Inc. set forth in such order; and to prohibit the defendant Honorable John W. Hereford, Judge of the Circuit Court of Cabell County, from enforcing another order entered by the Circuit Court of Cabell County on September 4, 1963 in the same action pending in that court, which enjoined the tax commissioner from holding a hearing scheduled for September 5, 1963, to revoke or suspend any licenses issued to the defendant American Cigarette Service, Inc., for the operation of its business by the defendant W. Merton Prunty, Special Receiver, until the further order of the circuit court.

On September 11, 1963, upon the petition and the certified copies of the orders entered September 4, 1963, filed as exhibits with the petition, this Court issued a rule returnable October 1, 1963, and by order suspended all proceedings in the circuit court until the final adjudication of this proceeding by this Court. On September 23, 1963, this Court denied the motion of the defendant American Cigarette Service, Inc. to annul and vacate the suspension order entered by this Court on September 11, 1963. On October 1, 1963, the return date of the rule, this proceeding was submitted for decision upon the petition and the exhibits filed with it; upon the separate answer of the defendant American Cigarette Service, Inc., and an exhibit with such answer consisting of a copy of a motion of that defendant in the Circuit Court of Cabell County to dismiss the proceeding instituted in that court by the state tax commissioner against that defendant; upon the motion of the defendant American Cigarette Service, Inc. to annul and vacate the suspension ordered by this Court on September 11, 1963; and upon the written briefs and the oral arguments of the respective attorneys in behalf of the petitioner and the defendant American Cigarette Service, Inc.

During the period August 13 to August 29, 1963, the petitioner, acting under authority of Section 20, Article 17, Chapter 11, Code, 1931, as amended, seized approximately 432 cigarette vending machines and their contents, owned by the defendant American Cigarette Service, Inc., in Cabell County, and on August 30, 1963, pursuant to the provisions of Section 27, Article 17, Chapter 11, Code, 1931, as amended, instituted an action in the Circuit Court of Cabell County for the confiscation of the vending machines and their contents.

The complaint in that action, a copy of which is filed as an exhibit with defendant's motion to annul and vacate the suspension order by this Court, charged that the cigarette vending machines had been used in violation of Sections 4, 16 and 17, Article 17, Chapter 11, Code, 1931, as amended, and for that reason were deemed to be contraband and forfeited to the State of West Virginia; that all packages of cigarettes which bore false and fraudulent West Virginia tax meter stamp impressions violated the same provisions of the statute and were likewise deemed to be contraband and forfeited to the State of West Virginia; and that all lawful money and coins in the vending machines were in violation of the statute and were also deemed to be contraband and forfeited to the State of West Virginia.

In the prayer of the complaint the plaintiff requested as part of the relief sought that the defendant be required to answer the complaint within twenty days from the service of a copy of the complaint, that a hearing be granted, that a special commissioner or receiver be appointed to make an inventory of the vending machines and their contents and to report to the circuit court the type and the number of such machines, their capacities and serial numbers, the number of packages of cigarettes containing false and fraudulent West Virginia tax meter stamp impressions, and the number of packages of cigarettes containing lawful West Virginia tax meter stamp impressions, in each vending machine, and the amount of coins and money in each vending machine; that after such report the vending machines and all cigarettes containing false and fraudulent tax meter stamp impressions and all money and coins in each vending machine be declared to be contraband and forfeited to the State and sold for the benefit of the free school fund as provided by law; and that all property of the defendant which should be declared not to be contraband be held in escrow for the benefit of the State pending determination of the tax liability of the defendant to the State.

At the time of the institution of this proceeding in this Court the defendant had not filed any answer to the complaint of the state tax commissioner. For that reason the material allegations that the cigarette vending machines and their contents, because of their illegal use in violation of the provisions of Sections 4, 16 and 17, Article 17, Chapter 11, Code, 1931, as amended, are contraband and forfeited to the State, will be regarded as true for the purposes of this proceeding. It should also be observed that when this proceeding was instituted there had been no determination in the action instituted by the state tax commissioner in the circuit court of the questions of contraband and forfeiture or of the rights of the parties in that action to the seized property. That action is still pending and the controlling questions involved in it are presently undecided.

Section 20, Article 17, Chapter 11, Code, 1931, as amended by Chapter 188, Acts of the Legislature, 1963, Regular Session, to the extent here pertinent, provides that whenever the state tax commissioner 'shall discover any cigarettes, subject to tax as provided by this article and upon which the tax has not been paid as herein required, the commissioner, or such deputy or employee is hereby authorized and empowered forthwith to seize and take possession of such cigarettes, which shall thereupon be deemed to be forfeited to the state and the commissioner may within a reasonable time thereafter by a notice posted upon the premises where such seizure was made, or by publication in some newspaper having circulation in the county wherein such seizure is made, at least five days before the day of sale, sell such forfeited cigarettes, * * *.'

Section 27 of the same statute, to the extent here pertinent, also provides that:

'Every person who shall transport cigarettes not stamped as required by this article upon the public highways, waterways, roads or streets of this state shall have in his actual...