State v. Wood, 44195

• Decision Date: 13 June 1966
• Docket Number: No. 44195,44195
• Citation: 187 So.2d 820
• Court: Mississippi Supreme Court
• Parties: STATE of Mississippi v. Charles WOOD.

Page 820

187 So.2d 820

STATE of Mississippi v. Charles WOOD.

No. 44195.

Supreme Court of Mississippi.

June 13, 1966.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Paul Alexander, Robert G. Nichols, Jr., W. E. Gore, Jr., John R. Countiss, III, Jackson, for appellant.

Wise, Smith & Carter, M. Curtiss McKee, Robert C. Travis, Julian P. Alexander, Jr., Jackson, for appellee.

BRADY, Justice.

This is an appeal by the State of Mississippi from a judgment of the First Circuit Court District of Hinds County, which affirmed a judgment of the County Court of Hinds County sustaining a motion to quash the affidavit and a demurrer to the affidavit charging the appellee with the possession of intoxicating liquors in violation of Mississippi Code Annotated section 2613 (1956). Under the constitutional question of due process, voluminous testimony was taken in support of the motion to quash and, by agreement, in support of the demurrer. The pertinent facts which were brought out under the motion to quash are tersely as follows:

The record discloses that on April 4, 1966, a search warrant was issued by County Judge Charles T. Barber, based upon an affidavit made by Deputy Sheriff Thomas B. Shelton, and a search was made of the premises of the County Club of Jackson in order to determine whether or not intoxicating beverages were being kept on the premises in violation of section 2613. Proper service of the search warrant was made upon Charles Wood, appellee, Manager of the County Club of Jackson, and a quantity of intoxicating liquors was found in the Club. Appellee was placed under arrest and the intoxicating liquors were confiscated. An inventory of the same was made and placed upon the back of the search warrant where the return was made and signed by Deputy Sheriff Shelton.

When the cause came on for hearing, the appellee filed a motion to quash and a demurrer to the affidavit which were heard ante litem and which were sustained by the Judge of the County Court. From this action, the State of Mississippi appealed with supersedeas to the Second Circuit Court District of Hinds County, where on May 3, 1966, Circuit Judge Russell D. Moore handed down an opinion and entered an order sustaining the action of the County Court. It is from the order of the Circuit Court that this appeal is prosecuted.

The basic grounds upon which appellant, State of Mississippi, urges reversal of the order of the circuit court are that both the county court and the circuit court erred in sustaining the motion to quash and the demurrer to the affidavit filed against appellee and committed error in holding that section 2613 had been repealed by implication; that the appellee was denied due process of law; and that the lower courts erred in holding that the appellee was a proper person who could complain of discriminatory application of the prohibition laws of the State of Mississippi, if such discrimination actually exists.

The errors are stated by appellant as follows:

1. The Appellate Court, the Circuit Court of Hinds County, Mississippi, erred in affirming the judgment of the County Court of Hinds County, sustaining a motion to quash and a demurrer to the affidavit filed against Appellee.

2. The Trial Court erred in adjudicating that Section 2613 of the Mississippi Code of 1942 has been repealed by implication, and the Appellate Court erred in affirming this adjudication.

3. The Trial Court erred in adjudicating that the prohibition laws of this state are being unconstitutionally applied by the representatives of the State of Mississippi, and, therefore, the Appellee was denied due process of law and the Appellate Court erred in affirming this judgment.

4. The Appellee has no standing before this Court and had no standing before the Trial Court or the Lower Appellate Court to challenge the validity, constitutionality or discrimination in the application of the prohibition laws of the State of Mississippi, since he has not shown that he is a person affected by the prohibition laws of the State of Mississippi.

Considering first the fourth error which is urged by appellant, we do not feel that this assignment is well taken for the reason that it has long been an established rule of law that it is not necessary for a person to wait until he has actually been fined or committed to jail before he can exercise his rights to contest the constitutionality of discrimination which he alleges is being practiced against him. The rule is succinctly stated in Cramp v. Board of Public Instruction, 368 U.S. 278, 283, 82 S.Ct. 275, 278, 7 L.Ed.2d 285 (1961), by the Supreme Court of the United States as follows:

The controlling question is whether (or not) the appellant 'has sustained or is immediately in danger of sustaining some direct injury as the result of (the statute's) enforcement * * *.' Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078.

It is to be noted that the proof shows that the appellee was actually arrested and that his arrest was predicated upon an affidavit charging a violation of the crime of the possession of liquor, section 2613. First conviction under this statute carries a fine of not less than $100 or more than $500, or not less than one week or more than three months in the county jail. Under our interpretation of the rule, the appellee is not required or expected to wait until convicted before he can raise the question of whether the statute upon which he is to be tried and upon which he has actually been arrested is constitutional. One who faces the certainty that his fine must be not less than $100 or that he must be imprisoned in jail for not less than one week, if convicted, is certainly in imminent danger of sustaining a direct injury from the enforcement of the statute. Therefore, there is no merit in this error assigned by appellant.

We next consider appellant's assignment that section 2613 has been impliedly repealed. A detailed and minute analysis of the prohibition laws and tax statutes of the State of Mississippi from 1848 down to the present time is outlined in the brief of appellee, which is interesting but does not have any direct bearing on his contention that there is now a repugnancy or irreconcilable conflict which exists between the prohibition statutes of this state and the laws taxing the sale of intoxicating liquors.

In order to dispose of this assignment of error, it is essential that we consider the objections thereto advanced by the appellee, which are (1) that the statutes are repugnant and cannot together have their appropriate application, or (2) that if no repugnancy exists, the latter enactments (tax) cover the whole subject matter and plainly show that it was intended by the legislature not only as a substitute for the earlier act, but to cover the subject and to prescribe the only rules with respect thereto.

Intrinsically it is obvious that the states and the federal government have the constitutional right and power as separate sovereigns to tax that which the sovereignty has declared to be illegal. Appellee in his brief concedes that the State of Mississippi has the right to impose a tax upon an illegal activity, and the appellant amply establishes this fact by proof that the United States Government has for a long period of time exercised its power to tax that which is forbidden or which is a violation of the law. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955); United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953); United States v. Stafoff, 260 U.S. 477, 43 S.Ct. 197, 67 L.Ed. 358 (1923); United States v. Yuginovich, 256 U.S. 450, 41 S.Ct. 551, 65 L.Ed. 1043 (1921).

The gravamen of appellee's contention is that because of irreconciable conflicts, or because of the repugnancy existing tax section 2613 and the pertinent tax statutes, particularly Mississippi Code Annotated sections 10112, 10115, 10147-03(b), and 10147-10 (1964), section 2613 by implication has been repealed. Section 10112 reads as follows:

Upon every person engaging or continuing within this State in the business of selling tangible personal property, the sales of which are prohibited by the laws of this State, there is hereby levied, assessed and shall be collected a tax equal to nine per cent (9%) of the gross proceeds of the retail sales of the business. All sales by wholesalers to other wholesalers or retailers licensed under this act shall be taxed at the rate of six per cent (6%) which shall be payable in accordance with the provisions of Section 6 (§ 10118) relating to such sales. A retailer or wholesaler in computing the tax on sales may take credit for the amount of the six per cent (6%) tax paid to a wholesaler located in this State and remit the difference to the Commissioner, provided adequate records and all invoices are maintained to substantiate the credit claimed. (Emphasis added.)

Section 10115 of the Code provides:

Any person who engages, or who intends to engage, in any business or activity which will subject such person to be privilege tax imposed by this act, shall apply to the commissioner for a permit to engage in and to conduct any business or activity upon the condition that he shall pay the tax accruing to the State of Mississippi under the provisions of this act; and shall keep adequate records of such business or activity as required by this act. Upon receipt of such permit, the applicant shall be duly licensed under this act to engage in and conduct such business or activity. Said permit shall continue in force so long as the person to whom it is issued shall continue in the same business at the same location, unless revoked by the commissioner for cause.

The commissioner shall require of every person desiring to engage in business within this state, who maintains no permanent place of business within this state, a cash bond or an approved surety bond in an amount sufficient...