Utah Liquor Control Commission v. Wooras

• Citation: 93 P.2d 455,97 Utah 351
• Decision Date: 10 August 1939
• Docket Number: 6016
• Court: Supreme Court of Utah
• Parties: UTAH LIQUOR CONTROL COMMISSION v. WOORAS et al

93 P.2d 455

97 Utah 351

UTAH LIQUOR CONTROL COMMISSION v. WOORAS et al

No. 6016

Supreme Court of Utah

August 10, 1939

Appeal from District Court, Seventh District, Carbon County; George Christenson, Judge.

Action in libel by the Utah Liquor Control Commission against William G. Wooras, Nick Kougelas and One Twenty Foot Bar with Sink, etc., to confiscate certain tangible personal property as used in violation of the State Liquor Control Act. From an adverse judgment, the libelant appeals.

AFFIRMED.

Parnell Black, D. Howe Moffat and George H. Lunt, all of Salt Lake City, for appellant.

O. K Clay and Henry Ruggeri, both of Price, for respondent.

LARSON Justice. MOFFAT, C. J., and WOLFE and McDONOUGH, JJ., PRATT Justice., concurring.

OPINION

LARSON, Justice.

Utah Liquor Control Commission, hereinafter called libelant, as plaintiff, commenced in the District Court of Carbon County an action in libel against defendants, hereinafter called libelees, to confiscate certain tangible personal property as used in violation of the State Liquor Control Act. Chapter 43, Laws of Utah 1935, as amended by Chapter 49, Laws of Utah 1937. From an adverse decision libelant appeals. Two questions are presented for determination: (1) Were the issues raised by the pleadings such as to make relevant and material certain testimony excluded by the court? (2) Were the pleadings and the proceedings by which the property was seized sufficient to vest the court with power to order a confiscation of the property? If both questions be answered in the affirmative the judgment must be reversed, but if question No. 2 be answered in the negative the judgment must stand.

The pertinent facts are as follows: Libelees operated at Helper, Utah, a place of business called the Grill Buffet. It consisted of a bar, a dice table, card tables, slot machines, tobacco counter, etc. On November 9, 1937, at about 12:55 P. M. libelee Kougelas sold to O. G. Broomhead, a special agent of libelant, a drink of whiskey, which was witnessed by W. R. Fairbourn, an inspector for libelant. Three other inspectors for libelant entered the place while Broomhead and Fairbourn were present but failed to see the sale and left the premises. One of these latter inspectors went to Price and secured a search warrant and an hour or an hour and a half later the three then returned to the Buffet and searched the premises but failed to find any intoxicating liquors. One of them, Robinson, arrested the defendants for violating the liquor regulations, and the prisoners were taken into the sheriff's custody. The inspectors then proceeded to take an inventory of the property and remained in possession of the premises until the next day. They tore loose the furniture and fixtures attached to the walls and floor and had all the tangible personal property moved to Price, where it remained in the possession of the libelant. A return was made by Fairbourn, who was not present at the search and seizure, and a warrant of attachment by the court was duly entered.

Plaintiff filed information in libel alleging the seizure of the property and that on the 9th day of November, 1937, the defendants had possession of and sold some whisky. Upon the trial of the case the court found, among other things, that the arrest of the respondents was void; that the seizure of the tangible personal property was void and unreasonable; and that the warrant of attachment should be quashed and the property returned to the libelees. Libelant appeals, raising the questions stated above. We consider them in order.

1. At the hearing, libelant offered testimony to prove that on November 8, 1937, and again on November 9, libelees sold and served whisky at the Grill Buffet to Fairbourn; that on November 8, they sold and served a drink of whisky to Broomhead; that on September 28 and again on the 29th, and on November 6 and November 7, they sold and served whisky to Broomhead. The court sustained objections to and excluded all this evidence upon the ground that it was beyond the issues raised in the pleadings, the information of libel only alleging one sale, to-wit, a sale to Broomhead on November 9th. Libelant preserved its exception and assigns the ruling as error. This requires an examination of the pleadings. The information alleges: (1) The seizure of the property by the agent of the libelant; (2) the filing of a Return of Seizure, and issuance and filing of a Warrant of Attachment by the court; and then alleges:

(3) "That on the 9th day of November, 1937, the libelees, Wm. G. Wooras and Nick Kougelas, at and within the premises hereinbefore described, did then and there wilfully, wrongfully and unlawfully have in their possession and custody and within their control certain goods, wares and merchandise, to wit: whiskey, an alcoholic beverage, which said alcoholic beverages were then and there in the possession, custody and control of said libelees for the purpose of being sold, bartered and given away in violation of the Liquor Control Act, Chapter 43, Laws of Utah, 1935, as amended by the Laws of Utah, 1937; that said property described in paragraph one hereof, at the time of and prior to said seizure was in the place and building where said alcoholic beverages were kept and found and in the possession of and in the custody and control of said libelees, and was owned and kept by said libelees for the purpose of being used, and was at all the times herein mentioned so used, in connection with the violation of the Liquor Control Act, to wit: selling alcoholic beverages contrary to the provisions of the Statutes of the State of Utah, in such cases made and provided and against the peace and dignity of the State of Utah." (Italics added.)

(4) And that by reason thereof the goods were subject to forfeiture. Upon the trial it was conceded by the parties and the court that the Return of Seizure was to be considered a part of the information. The return contained three allegations or statements of fact not found in the information proper: that on November 9th, libelee Kougelas at the Grill Buffet had sold and served to Broomhead one straight drink of whisky; that Wooras and Kougelas, libelees, had been thereafter and on said date arrested; and

"7. That one of the businesses conducted in the premises hereinabove referred to and where the violation of the Liquor Control Act of Utah as hereinabove specified occurred, was the business of selling intoxicating liquors in violation of Chapter 43, Laws of Utah, 1935, as amended. And that upon the happening of said violation as hereinabove specified affiant seized all tangible personal property as herein described, and affiant now has the same under control at said premises."

The court took the view of the libelees, that the charge was only that they had sold one drink of whisky, and one sale was insufficient to justify a seizure and confiscation of the property. The information itself contains no allegations of sales and the return alleges only the one sale on November 9 to Broomhead. But the gist of the information, as shown by the italics in the paragraph quoted above, is "the possession, custody and control" of alcoholic beverages "for the purpose of being sold, bartered and given away in violation of law," and that the property was used in furtherance of such possession, purpose, and selling. That the possession of intoxicating liquors, for purpose of sale, except by one duly authorized by the State is a violation of the Act cannot be doubted. Section 114 reads:

"It shall be unlawful for any person * * * to expose, or keep for sale * * * any * * * alcoholic beverage * * *."

A penalty is provided in Section 149. Section 164 provides for seizure of "liquors kept for the purpose of selling." The libel was not found upon the fact of the sale of one drink to Broomhead but was bottomed upon the wrongful and unlawful possession of intoxicating liquor for the purpose of sale, and that the property is subjected to confiscation because used in furtherance of such unlawful possession and purpose.

Such being the theory, the basis, and the gravamen of the action was proof of sales relevant and material? The mere possession of liquor not bearing state seals is unlawful, but if bearing state liquor seals or stamps possession is not unlawful unless coupled with an unlawful purpose such as for sale or barter. The most direct evidence of the purpose with which a thing is kept is the use made of it. And proof of sales, one or many, is clearly relevant and material in establishing the purpose for which the liquor was kept or possessed. Hayes v. State, 36 Ga.App. 668, 137 S.E. 860; People v. Jones, 343 Ill. 291, 175 N.E. 414; State v. Marlowe, 156 S.C. 363, 153 S.E. 340. The evidence of sales of liquor was therefore proper, relevant, and material as tending to show the purpose with which the liquor was kept or possessed, and the trial court was in error in excluding it. Question one is therefore resolved in favor of libelant.

2. Were then the pleadings and proceeding which culminated in the action sufficient to vest the court with power to confiscate the property seized? On the record before us there is no dispute of the fact that on November 9, libelees had in their possession at the Grill Buffet a bottle containing whisky and that Kougelas sold and served one drink thereof to Broomhead. The fact of the possession of liquor at the Grill Buffet must therefore be taken as proved on the record. One sale is not disputed, and we are not prepared to say that one sale is not sufficient to show the purpose with which the bottle was kept. The libelant offered to prove two other sales on the 9th, two sales on the 8th, some on the 6th and 7th, and some at a prior time to further prove...