State v. Gilliam

• Decision Date: 06 March 1946
• Docket Number: 15810.
• Citation: 37 S.E.2d 299,208 S.C. 126
• Parties: STATE v. GILLIAM.
• Court: South Carolina Supreme Court

37 S.E.2d 299

208 S.C. 126

STATE v. GILLIAM.

No. 15810.

Supreme Court of South Carolina

March 6, 1946

Rufus Fant, Jr., Sol., of Anderson, for appellant.

Ernest B. Castles, of Anderson, for respondent.

STUKES Justice.

Respondent was charged during the September 1945 term of the Court of General Sessions for Anderson County upon an indictment as follows, omitting formal parts:

1. '* * * Albert Gilliam on the 28th day of May, 1945, in the County of Anderson and State of South Carolina, did wilfully and unlawfully have in his possession alcoholic liquors which did not have South Carolina revenue stamps affixed to the container and containers thereof * * *.'

2. '* * * Albert Gilliam on the 28th day of May, 1945, in the County of Anderson and State of South Carolina, did wilfully and unlawfully transport alcoholic liquors which did not have South Carolina revenue stamps affixed to thecontainer and containers thereof * * *.'

Section 1841 of the Criminal Code of 1942 reads as follows:

'It shall be unlawful for any person to purchase, or otherwise procure, within this State any alcoholic liquor other than that purchased from licensed dealers within the State as provided for in this article, and any persons found in possession of any bottle or other package containing alcoholic liquor without having affixed the revenue stamps thereto, as required by this article, either or both, shall be guilty of a misdemeanor and, upon conviction, for the first offense shall be fined not less than fifty ($50.00) dollars, nor more than two hundred ($200.00) dollars, or imprisoned not less than fifteen (15) days nor more than thirty (30) days; and, upon conviction for a second offense as provided in this section shall be punished by imprisonment for not less than thirty (30) days.'

And section 1845, in part:

'It shall be unlawful for any person, firm or corporation to manufacture, store, keep, receive, have in possession transport, ship, buy, sell, barter, or exchange, any alcoholic liquors except according to the provisions of this article.'

The foregoing statutes are portions of the Act of 1935, 39 Stat 325, by which the handling and sale of alcoholic liquors were legalized and regulated, a departure from the former long-standing policy of prohibition. That legislation was amended by Act No. 211 of 1945, 44 Stat. 337, but in the form of a new liquor code which contains the following provisions as section 26:

'Sections 1829 through 1856, inclusive, of the Code of Laws of South Carolina, 1942, and all Acts or parts of Acts inconsistent with the provisions of this Act are hereby superseded, suspended and terminated, but all such sections, acts or parts of acts shall remain in force and effect insofar as they apply to and support prosecution for any violation thereof occurring prior to the approval of this Act, and also for the collection and enforcement of all license taxes due and payable thereunder, and also for the collection and enforcement of the surety bonds filed by licensees under the provisions of Section 1833, and for the seizure, confiscation, forfeiture and sale of any property therein declared to be contraband, and also in connection with all licenses granted prior to the approval of this Act for the regulation of the licensees having such licenses.'

The provisions of the 1945 Act which correspond with the former code sections 1841 and 1845 (quoted above) are found in section fourteen, 44 Stat. at page 352, as follows:

'(a) It shall be unlawful for any person to manufacture, store, keep, receive, have in possession, transport, ship, buy, sell, barter, exchange or deliver any alcoholic liquors except in accordance with the provisions of this Act, except liquors acquired in a legal manner.

'(b) It shall be unlawful for any person to purchase, or otherwise procure, within this State any alcoholic liquor other than that purchased from licensed dealers within the State as provided for in this article, and any person found in possession of any bottle or other package containing alcoholic liquor without having affixed the revenue stamps thereto, either or both, shall be guilty of a misdemeanor.'

Upon call of the case for trial, the respondent moved to quash the indictment upon the ground that sections 1841 and 1845 of the Code of 1942, under which the charges were brought, were 'superseded, suspended and terminated on July 1, 1945 by Act No. 211' of that year as to offenses occurring subsequent to May 7th, the date of the approval of the Act by the Governor. It was conceded by the State that the charges were under the said sections of the 1942 Code and that the alleged offenses occurred on May 28th.

The trial judge granted the motion and quashed the indictment upon the cited authority of our decision in State v. Spencer, 177 S.C. 346, 181 S.E. 217, 221. But we think that decision is not controlling. The facts there presented were quite different. Prosecution was pending against Spencer under the former prohibition law when the radical departure from it embodied in the Act of 1935 (Chapter 86 of the Criminal Code of 1942, volume 1 of the Code, page 1035 et seq,) was enacted without any saving clause as to offenses committed prior to its approval. The rationale of the decision is contained in the following excerpt from the opinion of the Court: 'It is obviously impossible for the preexisting law relating to the possession and transportation of beverages containing more than 1 per cent. of alcohol to stand alongside, as complementary to the 1935 Act which deals with the same subjects, and imposes entirely new rules as to every phase of the matter.' The marked difference in the facts of the case is further illustrated by this additional quotation from that opinion: 'Here the situation is that the particular crime for which the appellant has been convicted is no longer among the category of crimes under our law.'

More nearly we have here the situation in contemplation of the Court when it said in the opinion as follows: 'The case is, of course, only unlike those in which it appears that this court has frequently held that a statutory change in the punishment for a crime does not have the effect of impairing a prosecution pending at the time of the enactment of the statutory change, except to the extent of the punishment to be imposed. The case of State v. Mansel, 52 S.C. 468, 30 S.E. 481, is an illustration of the application of that principle.'

Consideration of the pre-existing laws contained in the Code of 1942 and the new liquor 'code' embraced in the Act of 1945, 44 Stat. 337 (the relevant portions of both being set out above), is convincing that it was very far from the intention of the General Assembly to turn the liquor traffic loose and leave it unregulated for any period of time. The expression in the 1945 Act relating to the former laws, that they were thereby 'superseded, suspended and terminated,' negatives an intention to repeal them outright. Had the latter been the intention, the usual and simple word 'repeal' would surely have been used. And the positive provisions that the former laws 'shall remain in force and effect insofar as they apply to and support prosecution for any violation thereof occurring prior to the approval of this Act,' etc., show beyond doubt that they were intended to constitute a 'saving clause' as such is ordinarily employed in the amendment or re-enactment of criminal statutes. The difficulty of the lower court arose from the plainly inadvertent use of the word 'approval' in the quoted provision of section 26 of the Act of 1945, 44 Stat. at page 359, instead of the words 'effective date.' And it is quite easy to see how the Legislature fell into this error for the Act is unusual in providing a date that it should take effect (in its main provisions) subsequent to the date of executive approval.

Perusal of the annual volumes of the statutes shows the general practice by the Legislature of providing that its enactments shall take effect upon their respective dates of approval by the Governor. The very great majority of them so provide. It is noted that the Code of 1942, section 2079, provides that an act shall become effective on the 20th day after approval by the Governor unless it provides otherwise; hence the common practice of inserting in acts that they shall become effective upon approval.

Intoxicating liquor has been taxed, traffic in it regulated by law (and some times prohibited) for centuries. It would be most startling if it were tax-free and unregulated during any period of the applicability of twentieth century legislation, so surely such was foreign to the intention of the General Assembly in this instance; yet such is the result of the decision of the lower court. This calls into play the principle which is well established in this and other courts that the choice of language, arrangement and grammatical construction of an act will not be construed with literality when that would defeat the manifest intention of the lawmakers, determined upon consideration of the entire act, related legislation, facts and conditions. See the carefully reasoned decision (opinion by Mr. Justice Woods) of Stackhouse v. Rowland, 86 S.C. 419, 68 S.E. 561, 562, from which the following is taken (supported by copious citations):

'However plain the ordinary meaning of the words used in a statute may be, the courts will reject that meaning, when to accept it would lead to a result so plainly absurd that it could not possibly have been intended by the Legislature, or would defeat the plain legislative intention; and if possible will construe the statute so as to escape the absurdity and carry the intention into effect. The cardinal rule, that the courts should in all cases...