State v. Payne

• Decision Date: 07 July 1958
• Docket Number: No. 40998,40998
• Citation: 327 P.2d 1071,183 Kan. 396
• Parties: STATE of Kansas, Appellee, v. Ray PAYNE, Appellant.
• Court: Kansas Supreme Court

Page 1071

327 P.2d 1071

183 Kan. 396

STATE of Kansas, Appellee, v. Ray PAYNE, Appellant.

No. 40998.

Supreme Court of Kansas.

July 7, 1958.

Rehearing Denied Oct. 1, 1958.

Syllabus by the Court

1. In its comprehensive scheme of regulating, licensing and taxing alcoholic liquor from the time of its manufacture or importation into the state until its ultimate sale by a licensed retailer for use and consumption, the manifest purpose of the legislature was to channelize the traffic in alcoholic liquor; to minimize the commonly attendant evils, and to facilitate the collection of revenue. To this end the manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions and subject to constant control by the state. All phases of the traffic in alcoholic liquor are declared illegal unless specifically authorized by the Kansas Liquor Control Act.

2. G.S.1949, 41-104 expressly legalizes the possession of alcoholic liquor for the personal use of the possessor, his family and guests, but at the same time conditions such possession and use with the provisions of G.S.1957 Supp. 41-407, making it unlawful to evade or attempt to evade the payment of tax or duty on 'such alcoholic liquor' and to have possession of any cask or package of 'such liquor' without each Kansas mark or tax stamp being affixed thereon as required by law.

3. The terms 'such alcoholic liquor' and 'such liquor' as used in G.S.1957 Supp. 41-407, when construed with the provisions of G.S.1949, 41-104, refer not only to alcoholic liquor which passes through the regulatory channels from a manufacturer to a licensed distributor and licensed retailer pursuant to the act, but refer also to alcoholic liquor possessed within the state for personal use of the possessor, his family and guests, regardless of where or from whom such alcoholic liquor is acquired.

4. Except for the possession and use of alcoholic liquor referred to in G.S.1949, 41-104(2), (3), (4), (5) and (6), and G.S.1957 Supp. 41-501(4), (5) and (9), it is unlawful for any person to possess alcoholic liquor for personal use in Kansas without having each Kansas mark and tax stamp required by law affixed to containers thereof (G.S.1957 Supp. 41-407).

5. The effect of the Kansas Liquor Control Act is to require that all alcoholic liquor for use in this state bear its proportionate share of the gallonage tax. The possession of alcoholic liquor purchased in another state and imported into Kansas for personal use constitutes evasion of the amount of the gallonage tax which would have been paid Kansas had such alcoholic liquor been purchased from a licensed retailer, notwithstanding the possessor cannot pay such tax directly. G.S.1957 Supp. 41-407 which makes it unlawful to evade or attempt to evade the amount of such tax does not violate Section 1 of the Bill of Rights of the Constitution of Kansas.

6. Pursuant to the 21st Amendment to the Constitution of the United States a state may absolutely prohibit the manufacture, transportation, importation, sale or possession of alcoholic liquors irrespective of when or where produced or obtained, or the use to which they are to be put, and may adopt measures reasonably appropriate to effectuate those inhibitions and exercise full police power in respect to them, unfettered by the due process clause, the equal protection clause or the commerce clause. This greater power to prohibit includes the lesser power to permit under definitely prescribed conditions.

7. The record in a criminal prosecution for a violation of G.S.1957 Supp. 41-407 examined and held: The trial court did not err in overruling the defendant's motions to quash the information; for his discharge following the filing of the stipulation of facts, and for a new trial.

Carl Pingry, Pittsburg, argued the cause and was on the briefs for appellant.

Robert E. Hoffman, Asst. Atty. Gen., and J. John Marshall, County Atty., Pittsburg, argued the cause, and John Anderson, Jr., Atty. Gen., and Don H. Musser, Asst. County. Atty., and Lew A. Hasty, Asst. Atty. Gen., were with them on the briefs for appellee.

FATZER, Justice.

The defendant was charged with evading or attempting to evade the payment of tax or duty on alcoholic liquor by having in his possession a bottle of alcoholic liquor upon which the tax imposed by the state of Kansas had not been paid and upon which there was no stamp or mark required by law, in violation of G.S.1957 Supp. 41-407. He entered a plea of not guilty, waived trial by a jury, and consented to an immediate trial by the district court. Having been found guilty as charged, he has appealed from the judgment of conviction and from orders overruling his motions to quash the information, for his discharge following the filing of the stipulation of facts, and for a new trial.

The evidence was stipulated by the parties, and may be summarized as follows: On June 13, 1957, the defendant purchased a half gallon of White Port wine in Missouri and walked with it across the state line into the city of Mulberry, Kansas, where he was arrested by agents of the Director of Alcoholic Beverage Control. The wine was an alcoholic liquor as defined by G.S.1957 Supp. 41-102(2), and was possessed by the defendant for his personal use in this state.

Both the federal and Missouri liquor tax had been paid on the wine, but no tax had been paid on it to the state of Kansas prior to or at the time of defendant's arrest, and no stamp or mark evidencing the payment of the gallonage tax to the state of Kansas was affixed to the bottle or container.

Under the Kansas Liquor Control Act and regulations adopted by the Director of Alcoholic Beverage Control, all tax stamps evidencing the payment of the gallonage tax on alcoholic liquor must be purchased by the manufacturer or licensed distributor from the Director and affixed to each original package before it may be removed from the owner's bonded warehouse for sale at retail in the state. Licensed retailers are required to purchase all alcoholic liquor from a licensed distributor who must maintain a bonded warehouse in the state. It was impossible for the defendant to pay the gallonage tax directly to the state of Kansas, or to purchase a tax stamp to affix to the bottle containing the alcoholic liquor. No method is provided by the act by which a consumer or possessor of alcoholic liquor for his personal use can pay the gallonage tax; the only way he can increase tax revenues from alcoholic liquor is by purchasing the beverage from a licensed retailer in the state, in which case the tax is undoubtedly reflected in the sale price.

The defendant specifies error in four particulars which he has briefed under two basic contentions: First, that the provisions of G.S.1957, 41-407 are inapplicable to him under the agreed facts, and second, that if the statute is applicable to those facts, it is void and unconstitutional being in violation of the commerce clause (Art. 1, Sec. 8, Clause 3) and the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States, and of Sections 1 and 15 of the Bill of Rights of the Constitution of Kansas.

As preliminary to discussing the defendant's contentions we note that when G.S.1957 Supp. 41-407 was originally enacted in 1949 (G.S.1949, 41-407) the section was commonly referred to as the 'two quart' provision of the act, which made legal the possession and transportation of not to exceed two quarts of alcoholic liquor for the personal use of the possessor, his family and guests, upon which the tax imposed by the act had not been paid or on the containers of which the Kansas mark and stamp required by the act had not been affixed. In other words, any person could purchase not to exceed two quarts of alcoholic liquor in Missouri, or in any other state, and legally possess the same for personal use in this state without the Kansas tax stamp being affixed to the containers. The section, however, made it unlawful, following the governor's proclamation placing the licensing and taxing provisions of the act into effect, to possess more than two quarts of alcoholic liquor without the Kansas tax stamps or marks being affixed to the containers (State v. Sumner, 169 Kan. 516, 219 P.2d 438; State v. Wilson, 169 Kan. 659, 220 P.2d 121). In the Wilson case the defendant was charged with possessing more than two quarts of alcoholic liquor without having the Kansas tax stamp affixed to each bottle or cask. In the opinion it was said:

' * * * The gravaman of the offense charged is not possession, but possession of in excess of two quarts of alcoholic liquor without Kansas tax stamps affixed to the containers * * *.' (169 Kan. loc. cit. 661, 220 P.2d loc. cit. 123.)

At its regular 1957 session the legislature amended G.S.1949, 41-407 and removed the 'two quart' provision (G.S.1957, Supp. 41-407 [Ch. 291, L.1957]). The title to the 1957 act reads:

'An Act relating to alcoholic liquor, making it unlawful to possess alcoholic liquor in certain cases and providing penalties for violations thereof; amending section 41-407 of the General Statutes of 1949, and repealing said original section.' (Emphasis supplied.)

That part of the amended section (G.S.1957 Supp. 41-407) the defendant was charged with violating, reads:

'It shall be unlawful for any person (1) to evade, or attempt to evade, the payment of tax or duty on any such alcoholic liquor, in any manner whatever and upon conviction thereof, in addition to the penalty prescribed for the violation of this act, such person shall forfeit and pay, as a part of costs in such action, double the amount of the tax so evaded or attempted to be evaded; (2) to have in his possession any cask or package of such liquor, without having thereon each mark and stamp required therefor by law; and such cask or package not having the mark or stamp as aforesaid, shall be forfeited to the state of Kansas * * *.' (Emphasis...