State v. Bengsch

• Decision Date: 12 November 1902
• Citation: 170 Mo. 81,70 S.W. 710
• Parties: STATE v. BENGSCH.
• Court: Missouri Supreme Court

70 S.W. 710

170 Mo. 81

STATE v. BENGSCH.

Supreme Court of Missouri.

November 12, 1902.

INTOXICATING LIQUORS—SALE WITHOUT LICENSE— INFORMATION — SUFFICIENCY— STATUTES — LIQUOR TAX — TITLE OF ACT— TAXATION—NATURE OF TAX—UNIFORMITY— EXEMPTIONS—CONSTITUTIONALITY—INTERSTATE COMMERCE—INTERFERENCE— EQUAL PROTECTION OF THE LAWS.

1. Act April 17, 1901, § 4, taxing the manufacture and sale of liquor, does not apply to liquors manufactured for export, or before the enactment of the statute. An information charged that accused, a dramshop keeper, unlawfully and knowingly received into his dramshop one barrel containing distilled liquor, commonly known as "whisky," which barrel did not have affixed thereto license-tax stamps, and that accused sold one gallon of distilled liquor, commonly known as "whisky," drawn from a barrel to which license stamps were not attached. Held that, as the information did not show that the whisky received and sold was within the terms of the act, it was insufficient.

2. The title of Act April 17, 1901, was, "An act to provide for a state license tax on distilled liquors, including whisky," etc., "and distilled spirits of all kinds, wines and all kinds of vinous liquors; to create the office of special license commissioner, and to provide for the appointment thereof by the governor." The act imposed a property tax on distilled liquors manufactured in the state, or brought into the state for sale therein, required vendors of liquors to take out a license, and, by construction, exempted pure alcohol, domestic wines, and liquors manufactured for export, from taxation. Held, that the title to the act was not a violation of Const. art. 4, § 28, requiring that no bill shall contain more than one subject, which shall be clearly expressed in its title.

3. Act April 17, 1901, was entitled "An act to provide for a state license tax on distilled liquors, including whisky," etc. Section 4 provided that "there shall be paid for the right and privilege to manufacture for sale in this state, distilled liquors," etc., "and for the right or privilege to sell such distilled or vinous liquors or products, brought or shipped into this state for sale herein, a special license tax of 10 cents for every gallon," etc. Section 25 providing that, "there being a deficiency in the revenue of the state," an emergency existed, which warranted the act's taking effect from its passage. The stamps issued pursuant to the act, and the construction given to it by the governor and attorney general, indicated that it was intended as a revenue measure. Section 24 of the act preserved in force Rev. St. 1899, c. 22, § 3015, giving permission to wine growers in the state to sell their own wine on their own premises. Held, that as the act did not apply to liquors manufactured for export, nor to domestic wines or pure alcohol, and as it was essentially a revenue measure, it violated Const. art. 10, § 3, declaring that taxes shall be uniform on the same class of subjects within the territorial limits of the levying authority.

4. Section 25, constituting the emergency section, was sufficient in itself to stamp the measure as one for revenue merely.

5. So far as liquors manufactured for sale in the state, and liquors shipped into the state for sale therein, were concerned, the act was not bad for want of uniformity; each class of liquors being taxed the same amount.

6. The act, being framed and enacted as an entirety, so that it presumably would not have received the legislative sanction but for the fact that it was intended to operate as a whole, was void in toto.

7. The act, in view of its exemptions, was also invalid as infringing Const. art. 10, § 4, which commands that all property subject to taxes shall be taxed in proportion to its value.

8. Const. art. 10, § 6, specifically describes what property shall be exempt from taxation, and section 7 declares that all laws exempting property other than that enumerated shall be void. Held, that the act, in view of its exemptions, was void under these provisions.

9. Where a dramshop keeper is prosecuted for selling liquor on which a tax has not been paid, he may assail the statute imposing the license as unconstitutional in respect to manufacturers; the provisions of the act being so related as to avoid it as an entirety.

10. Under the act of congress of August 8, 1890, known as the "Wilson Law," which provides that intoxicating liquors transported into any state or territory, and remaining there for use, sale, or storage, shall, on arrival, be subject to the operation and effect of local laws enacted in the exercise of the state's police powers, the question whether the act of April 17, 1901, imposing a tax on liquors imported for sale into the state, violates Const. U. S. art. 1, § 10, prohibiting any state from laying imposts or duties on imports, or section 8, giving congress the power to regulate interstate commerce, cannot arise.

11. Act April 17, 1901, imposes a tax on liquor manufactured for sale within the state, but does not impose a tax on its manufacture for export. Held, that the act violates Const. U. S. Amend. 14, guarantying to each citizen of the United States and of each particular state the equal protection of the laws.

Brace, Gantt, and Valliant, JJ., dissenting in part.

In banc. Appeal from circuit court, Bates county; W. W. Graves, Judge.

Paul Bengsch was prosecuted for selling whisky on which he had not paid a tax. From a judgment of acquittal, entered on sustaining a motion to quash the information, the state appeals. Affirmed.

The following is a copy of the act referred to in the opinion:

"Be it enacted by the general assembly of the state of Missouri, as follows:

"Section 1. There is hereby created the office of `special license commissioner,' which shall be filled by appointment by the governor, by and with the advice and consent of the senate, within ten days after the taking effect of this act. Such officer shall be known as the `Special License Commissioner of the State of Missouri,' and shall hold his office for a term of four years and until his successor is appointed and qualified. He shall be of good moral character, over the age of twenty-five years, a citizen of the United States and of this state for more than two years next prior to his appointment. He shall give a bond to the state in the sum of twenty-five thousand dollars ($25,000) to be approved by the governor, conditioned for the faithful and correct performance of the duties of his office, which bond shall be filed and kept in the office of the secretary of state. He shall not at the time of his appointment nor during his term of office be in the employ of any person, company, association or corporation engaged in the manufacture or sale of distilled liquors, including whisky, brandy, rum, gin or distilled spirits of any kind, or wines of any kind or any class of vinous liquors, nor shall he at such time or during such term be engaged, or directly or indirectly interested in the manufacture or sale of whisky, brandy, rum, gin or distilled spirits of any kind, or wines of any kind or any class of vinous liquors, or a director or stockholder in any corporation, association or joint stock company engaged in the manufacture or sale of such product.

"Sec. 2. The board of public buildings shall furnish to the special license commissioner rooms or apartments in the capitol building sufficient for the transaction of the business of his office.

"Sec. 3. The special license commissioner shall keep and maintain his office at the seat of government in the city of Jefferson, and shall employ such clerical assistance as may be necessary to enable him to fully and fairly discharge the duties of his office. His salary shall be three thousand dollars ($3,000) per annum. The number of clerks to be employed as above provided shall not exceed three, including a stenographer. The compensation of the stenographer shall be seven hundred and fifty dollars ($750) per annum, and the clerks shall not receive more than fifteen hundred dollars ($1,500) per annum each, all of such salaries to be paid monthly out of any fund appropriated for that purpose.

"Sec. 4. There shall be paid for the right and privilege to manufacture for sale in this state distilled liquors, including whisky, brandy, rum, gin and distilled spirits of all kinds, wines of any kind and every class of vinous liquors, and for the right or privilege to sell all such distilled or vinous liquors or products, brought or shipped into this state for sale herein, a special license tax of ten cents for every gallon, and at a like rate for any other quantity or fractional part of a gallon contained in a receptacle of any kind or character whatever.

"Sec. 5. It shall be the duty of the state treasurer, upon the taking effect of this act, to provide, for the payment of such tax, suitable stamps denoting the amount of tax required to be paid on the gallons, quarts, pints, sixths, eighths or other receptacles of such distilled or spirituous liquors, wines or vinous liquors, and shall safely keep the same, together with the plates used in making them, when not in actual use. He shall from time to time upon demand, deliver such amount or number of the stamps to the special license commissioner, as may be required, taking therefor his receipt, and shall charge said commissioner with the same.

"Sec. 6. Every person, company, association or corporation engaged in the business of manufacturing or distilling the distilled liquors hereinbefore enumerated and all wines and vinous liquors or other similar liquors or products, or engaged in the business of dramshop keeping or in otherwise selling such distilled liquors or products, wines or vinous liquors, or other similar liquors or products, shall make application to the special license commissioner for a permit to purchase stamps from him, for and during a term not to exceed one year after such...