Carey, State Treas. v. McFatridge

This is a declaratory judgment action, of which this court has[1] accepted original jurisdiction as necessary and proper to the complete exercise of its appellate jurisdiction, in view of the emergency presented and the consequent inadequacy of the ordinary appellate procedure. Plaintiff, as State Treasurer, seeks a declaratory judgment to[2] determine his duties, obligations and status with regard to the following draft presented to him for payment: (Obverse) "Do Not Detach Make no Changes on This Voucher Draft. If incorrect, Return Promptly. Indorsement Constitutes Receipt in Full for the Within Account. The First National Bank of Chicago By Carl Gillie /s/ Assistant Vice President *Page 282 ________________________________________________________________ Montana Liquor Control Board No. C 15434 Pay to the Order of Helena, Montana, August 31, 1943 First National Bank of Chicago $150000.00 ---------------------------------------------------------------- M.L.C. B $150000 and 00Cts Dollars ---------------------------------------------------------------- To Montana State Treasury, Montana Liquor Control Board Helena, Montana: By T.H. MacDonald /s/ Payee must endorse back Administrator and sign on face. By George Crispin /s/ Received Payment in Full Chief Accountant The First National Bank of T D Window 15. Chicago Carl Gillie /s/ Payee (Reverse) Montana Liquor Control Board Helena, Montana, August 31, 1943 No. C 15434 Received of the Montana Liquor Control Board First National Bank of Chicago Chicago Special Sales Account $150000.00 Advanced by Montana Retail Liquor Dealers as Advance Deposit of Fifteen Thousand Cases of Liquor, to be Purchased from Foster and Company, New York, When Contract for Such Purchase Has Been Executed. Endorsement on Back CONSTITUTES a RECEIPT in Full. Do not Detach. _________________________________________ Special Sales Account $150000.00 Advanced by Montana Retail Liquor Dealers as Advance Deposit on Fifteen Thousand Cases of Liquor, to be Purchased from Foster and Company, New York, When Contract for Such Purchase Has Been Executed." By their cross-complaint the members of the Montana Liquor *Page 283 Control Board and the State Liquor Administrator allege that there is a shortage of liquor supplies due to the war exigencies and that the amount of whiskey sold direct to retail purchasers is therefore rationed by the Board in the amount of one pint a week, and to licensed retailers in substantially sixty per cent. of the amounts severally purchased by them in 1942; "that on occasions some of the said retail liquor dealers have been able to locate liquor which could be purchased for them in a legal manner and which could not be purchased for the general public by the Montana Liquor Control Board"; that in May, 1943, the Board therefore established the publicly announced policy that any person entitled to buy liquor through state stores who could locate any lawfully available supply might advance the necessary funds and have the same purchased by the Board; that the Board would buy the liquor, take title, add the state mark-up and sell it to the one so locating the liquor and advancing the money, and that the same would not be considered as part of the allotment of such purchaser under the rationing system, but would be in addition thereto; that such arrangement for additional supplies not available as part of the supply taken into consideration by the Board under its rationing system was advisable to prevent rum-running, illicit distilling, black markets and other evils; that about May 30, 1943, the Board received an offer from Foster Company, a partnership, to sell it 15,000 cases of certain blended whiskey at $19.24 per case, F.O.B. bottling plant, on terms by which the Board was required to advance $10 a case to be immediately paid to Foster Company through the First National Bank of Chicago; that the Board concluded that it could not lawfully make the advance from Board funds, and that being unsuccessful in its attempt to obtain a modification of the requirement, and "being mindful of its duties to raise revenue for the State of Montana and to provide liquor for the purpose of sale to those who had paid their license money to the State of Montana * * *, contacted representatives of the Montana Retail Liquor Dealers Association and informed them of the above facts and asked them to contact all retail liquor dealers in the state and present *Page 284 the matter so that they might make the advance deposit under the terms of the contract, * * * that substantially 127 of such retail liquor dealers in varying amounts subscribed to the advance of $10.00 per case and paid said amounts to the Montana Liquor Control Board, which Board deposited said amounts with the Plaintiff as treasurer of the Montana Liquor Control Board, segregating all of said amounts in a special fund on the Books of the Board, which amount was designated `Special Sales Account No. 9'. Said account was set up after consultation with and on the advice of the State Examiner for the State of Montana; that * * * the Defendant, T.H. MacDonald, and L.H. Christensen, Purchasing Agent for these answering Defendants, proceeded to the City of Chicago and on the 13th day of September, 1943, met with representatives of the other contracting parties in the First National Bank of Chicago, examined the warehouse receipts to be deposited on the contract and approved the same and with the other contracting parties, signed the contract in question, * * *." The Board therefore joins in the request of the plaintiff for a declaratory judgment upon the points requested by him and also upon the following questions: "1. Is any revolving fund of $150,000 or any other amount legally established by the Board of Examiners of Montana as alleged in the complaint? "2. May the Montana Liquor Control Board accept moneys from persons as an advance for the purchase of liquor through the state stores of the Montana Liquor Control Board, such liquor to be sold to such persons under a policy and regulation of such Board where the liquor so purchased could not otherwise be purchased by the Montana Liquor Control Board and in addition to the quotas which such persons might purchase under the general policy of the Board? "3. May the Montana Liquor Control Board advance moneys from the funds of the Liquor Control Board under the circumstances set out in Exhibit A of the answer? "4. May the Montana Liquor Control Board legally establish *Page 285 a policy of permitting persons entitled to purchase liquor in Montana, to locate such liquors and advance money for its purchase, title to be in the Montana Liquor Control Board, and then after paying the Montana excise tax and mark-up, purchase such liquor through state stores, receiving credit for the money so advanced? "5. May such advances be placed in a special account on the books of the Montana Liquor Control Board and deposited with its treasurer and checked out by the Board in accordance with the purposes for which it was advanced?" The allegations of the answer are deemed admitted, no reply having been filed. It will not be necessary to refer to other pleadings and papers filed by the various defendants. The contract (shown in the answer as "Exhibit A"), dated September 17, 1943, was between (1) Foster Company, therein called the Sellers, (2) the Montana Liquor Control Board, called the Buyer, and (3) the American Distilling Company, called the Company. Its provisions pertinent to this action are as follows: "1. The Sellers hereby sell and agree to deliver to the Buyer, and the Buyer hereby purchases and agrees to accept and pay for as herein provided * * * Fifteen thousand cases of `Fifths' of a blend of straight whiskies or of such other whiskies as may be set forth in said Schedule A. The * * * Company shall make delivery of said merchandise and the Buyer shall accept delivery thereof and make payment therefor to the Sellers in accordance with the provisions hereof, that said deliveries shall be made over a period of approximately 14 months more or less beginning approximately 30 days after the date hereof and shall be in substantially equal monthly shipments. "2. * * * The Buyer has advanced to the Sellers and deposited with The First National Bank of Chicago as depositary the sum of $150,000.00, it being understood and agreed to by the parties hereto that said advance and deposit shall be held and/or delivered to the Sellers subject to the terms and conditions of a certain agreement dated the 17th day of September, 1943, by and *Page 286 between the Sellers, the Buyer, the Company, and The First National Bank of Chicago as Depositary, a copy of which said agreement is annexed hereto and designated Exhibit 1, and * * * said advance and deposit * * * shall be applied by the Sellers against and credited upon a per case basis to the purchase price of the merchandise herein agreed to be bought and sold * * *. "3. The Sellers * * * have heretofore entered into an agreement with the Company to blend, bottle, package and deliver to the Buyer the said merchandise in accordance with the provisions herein stated * * * and the Company hereby * * * agrees with the Buyer * * * to blend, bottle, package and deliver to the Buyer the said merchandise * * * in accordance with the requisitions of the Buyer and/or subject to the provisions hereof. "4. For the purpose of performance of the provisions contained in paragraph 3 hereof, the Sellers, subject and pursuant to the provisions of the Agreement designated Exhibit 1 hereto annexed, will furnish to the Company, by means of the warehouse receipts as therein provided, or otherwise, the whiskey and spirits so to be blended, bottled, packaged and delivered by the Company, and the Company shall furnish and pay for all containers, stamps, wrappers, labels, labor, and federal and state taxes at the prevailing rate thereof at the time of bottling accrued before or during bottling. "5. The price per case to be paid by the Buyer to the Sellers for the merchandise hereby bought and sold shall be Fifths, $19.24 per case net, not subject to discount, or such other price or prices from time to time required by the Office of Price Administration * * * F.O.B. Pekin, Illinois or shipping point, * * * upon receipt of invoice with Bill of Lading attached." The deposit agreement of the same date referred to in the above sales and bottling contract as "Exhibit 1," provided as follows: "Whereas, the Buyer has contracted to purchase from the Sellers and the Sellers have contracted to sell to the Buyer Fifteen Thousand cases of a blend of straight whiskies as set forth in said agreement between the Buyer, the Sellers and the Company, herein referred to as the Sales and Bottling Contract and *Page 287 "Whereas, the said whiskey is at the present time in bulk form and it is provided in said contract that the Company bottle or cause to be bottled the said whiskey and cause it to be delivered to the Buyer in cases and it is the desire of the Buyer, the Sellers and the Company to enter into an arrangement whereby the said whiskey will be made available to the Company for bottling and delivery to the Buyer in the form of case goods, "Therefore, the Buyer, the Sellers and the Company * * * hereby agree among themselves and with the Depositary as follows: "1. The Sellers hereby deposit with the Depositary warehouse receipts for whiskey to be used in bottling the merchandise contracted to be sold by the Sellers to the Buyer. * * * "2. The Company, the Sellers and the Buyer herewith deposit an executed copy of the Sales and Bottling Contract entered into between them under date of September 17th, 1943. "3. The Buyer herewith deposits, or has heretofore deposited with the Depositary the sum of $150,000.00, which sum is hereby stated to represent a payment at the rate of $10.00 per case on account of said whiskey. "4. Promptly after the signing of this Agreement and the deposit with it of the property agreed to be deposited under paragraphs 1, 2 and 3 hereof, the Depositary is authorized and instructed to pay to the Sellers or their designee the cash deposited herewith by the Buyer. The Sellers agree to accept said amount as a partial payment on the whiskey covered under the Sales and Bottling contract * * *. "5. From time to time on receipt of notification from the Buyer that the whiskey described in the notice is required for bottling purposes under the Sales and Bottling Contract with request by the Buyer for the release to the Company, as the Sellers' bottling agent, of the warehouse receipts covering such whiskey, the Depositary is authorized to comply with the request. * * * "6. Warehouse receipts so requested shall be delivered by the Depositary to the Company on trust receipts for the specific *Page 288 purpose of bottling the whiskey covered thereby under the terms of the Sales and Bottling Contract. It is understood that when such whiskey has been bottled, blended and packed in accordance with the provisions of the Sales and Bottling Contract, the Company, as bottling agent of the Sellers, will cause the same to be delivered to the Buyer. Immediately upon receipt of such shipment by the Buyer, the Buyer shall notify the Depositary of the fact of such delivery and upon receipt of said notice by the Depositary said Depositary shall thereupon release to the Company the trust receipt covering such whiskey. Immediately upon receipt by the Buyer of invoice with bill of lading attached, the Buyer shall pay the invoice price direct to the Sellers. * * * "7. The Sellers will procure and at all times maintain in full force and effect at Sellers' own cost insurance in good and responsible companies covering to full insurable value all whiskey evidenced by warehouse receipts deposited with the Depositary hereunder, insuring such whiskey against all hazards customarily insured against by first-class companies engaged in the same business as the Company. * * * In the event same cannot be replaced and the proceeds from the insurance is insufficient to completely reimburse the Buyer after due allowance for merchandise theretofore delivered to the Buyer under said Sales and Bottling Contract, for the amount of the advance payment deposited with the Depositary as herein provided, the Sellers shall pay to the Buyer such sum as may be required so to reimburse Buyer. "8. The Sellers agree that they will pay all charges including storage which may accrue under the terms of any warehouse receipts during the period that the same are on deposit with the Depositary hereunder. "9. The whiskey covered by the warehouse receipts deposited with the Depositary as herein provided is to be held by the Depositary as security to the Buyer for the performance of the Sales and Bottling Contract by the Sellers and by the Company. It is represented to the Buyer by the Sellers and by the Company, as Sellers' Bottling Agent, and they hereby warrant that the quantity *Page 289 of said whiskey is adequate to provide for the bottling and delivery to the Buyer of the number of cases purchased from the Sellers, and the Sellers and the Company agree to replace with whiskey of like kind and quality any deficiency in quantity which may be necessary to bottle and deliver to the Buyer the case goods as purchased, whether said deficiency be due to outage, shrinkage, evaporation or leakage, or to any other cause not covered by clause 7 of this Agreement, or by clause 7 of the Sales and Bottling Agreement hereto attached. "10. The Sellers and the Company severally and each for itself represent and warrant to the Buyer and to the Depositary that as of the date hereof the warehouse receipts mentioned in paragraph 1 hereof and described in Exhibit A hereto attached are genuine and evidence actual whiskey or whiskies and the quantities, inspections and proof thereof as set forth and described in said warehouse receipts. "11. In the event of the breach or default by the Sellers and/or by the Company in the performance of their obligations under this agreement, or under the Sales and Bottling Agreement hereto attached, the Depositary, upon being shown to its satisfaction that such breach or default has occurred and upon being requested so to do by the Buyer, shall deliver to the Buyer all warehouse receipts remaining in the possession of the Depositary which were deposited with said Depositary pursuant to paragraph 1 of this Agreement, but the fact of such delivery shall not relieve the Sellers or the Company from liability to the Buyer for such legal damages as may be sustained by said Buyer." We find nothing unlawful in this purchase. It was made by[3] the Board under its statutory power "to buy, import, and have in its possession for sale, and sell, liquors, in the manner set forth in this act" (subd. (a) of Sec. 2815.67). There is nothing in the Act qualifying or limiting the Board's right or method of purchase, with reference either to the down payment or to any other provision of the contracts in question. The Board[4] clearly had the right to make the down payment out of its own *Page 290 funds under such arrangement as this, under which its interest thus obtained in the liquor was fully protected. It is apparent that by the contract the Board purchased the[5] liquor, the three-party contract being necessary because the liquor, which was in bulk, was to be delivered bottled and cased, which the sellers were not personally in a position to do; and the four-party depositary contract being necessary because, to protect the Board in its purchase in view of the advance payment, the liquor was to be held by the bank as depositary through the medium of warehouse receipts, and of trust receipts pending the bottling and delivery. It is also apparent that while the contracts provided that the $150,000 was delivered to the bank as depositary they also provided that immediately upon the execution of the contracts the money was to be paid to the sellers by the bank. Therefore upon the signing of the contracts and the payment of the money, the bank is to be a depositary, not of the Board's money for the sellers' protection, but only of the merchandise for the Board's protection. Furthermore, the reference to the deposit of money is explained by the allegation of the answer that the contracts were actually executed on September 13th but were dated September 17th so as to permit the draft in question to be forwarded to Helena for payment, indicating that by the deposit was meant the delivery of the draft. It follows therefore that if and when the draft is paid with money now held by the plaintiff, the money will not be deposited with the bank as public funds, but will be paid to the bank for immediate delivery to the sellers under the terms of the contract. It was apparently this feature of the arrangement which was misunderstood and misconstrued as possibly constituting an improper deposit of state funds in an unbonded and unauthorized depositary. Since the draft was issued as a down payment under a valid contract of the Board for the purchase of liquor, and not as a public deposit of funds in an unauthorized bank, it can properly and safely be honored by plaintiff regardless of the source of the Board's funds. In this respect it makes no difference *Page 291 whether it represented money received as full cash payment for liquors theretofore sold and delivered, or as partial down payments for liquors agreed to be purchased for future delivery by the 127 dealers in question. If the objection were valid in the one case, it would be equally valid in the other, for when paid to the Board as an advance payment of $10 per case it became the Board's money, like money paid to any merchant under a partial payment contract. But the objection is not valid in either case, since the funds are paid out to the sellers through the bank for goods purchased under a valid contract, and are not[6] deposited to be held by the bank as a depositary of public funds. Nor does the Board's contract constitute a pledging of the state's credit under section 2815.154, which as amended by Chapter 54, Laws of 1939, infra, provides that no obligation of the Board shall ever become a debt or claim against the state. We do not find anything contrary to law in the partial payment[7] by the dealers to the Board. While under subdivision (2) (c) of section 2815.71, Revised Codes, the purchase price must be paid in cash before the goods are delivered to the purchaser, that provision is not violated by a partial payment prior to, and a final payment upon, the delivery. The contract with the dealers is not invalidated by the[8] rationing system set up by the Board. That system having been found necessary in the emergency war situation, and being reasonably within the Board's statutory power under subdivision (j) of section 2815.68 to prescribe "the kinds and quantities of liquor which may be purchased under permits of any class," the Board had full power to establish the rationing system and full power to amend or alter it either directly or by lawful transactions having that effect, without discrimination as among the holders of any class of permits. If the liquor in question would not otherwise have been[9] available to the people of the state, and if it was therefore not taken into consideration in the rationing system, no injustice seems to be done other prospective purchasers by the agreement with the dealers whose advance payment has caused the liquor *Page 292 to be purchased by the board, especially since all similarly situated were given the opportunity to participate. This is true even though in further similar purchases the Board may properly use any available funds as a down payment without violating the provision against the deposit of public funds in unauthorized depositaries. It is suggested that certain references indicate that the liquor was being purchased by the dealers, or by the Board as mere agent for the dealers. But the written contracts above recited constitute a purchase of the liquor by the Board, and the contract with the dealers shown by the circumstances can constitute nothing but an agreement for the sale and delivery of the liquor to them upon its receipt, and a partial payment by them in advance. But what appears to be a real defect in the contract with the[10] dealers is the fact that the Board's consent was not free, sec. 7475, Rev. Codes, but was the clear result of a mistake of law, sec. 7484, Rev. Codes, apparently indulged in by both parties, or at least by the Board and not corrected by the dealers, sec. 7486, Rev. Codes; and that the contract may therefore be subject to rescission as provided by statute, sec. 7474, Rev. Codes. This question, between the defendants who constitute the Board, and the defendants, Montana Licensed Liquor Dealers Association, and Thomas F. Hurley, its president, who are allegedly authorized to represent the interested dealers for the purposes of this action, has not here been litigated and cannot here be decided. But it may be the duty of the Board to have the question adjudicated in a proper action in the general public interest. It is worthy of note that upon the enactment of the State[11] Liquor Control Act as Chapter 105, Laws of 1933 (now sections 2815.60 to 2815.163, inclusive, Rev. Codes of 1935), the legislature provided that all money received from the sale of liquor and from license fees, taxes and otherwise, should be paid to the Board and that the Board should make such expenditures from the fund as were necessary in the administration of the Act, secs. 2815.153 and 2815.154; and that the latter section was *Page 293 amended by Chapter 54, Laws of 1939, to provide further that: "no obligation created or incurred by the board shall ever be, or become, a debt or claim against the State of Montana, but shall be payable by the board solely from funds derived from the operation of state liquor stores, and the board shall pay into the state treasury the receipts from all taxes and licenses by it collected, and also the net proceeds from the operation of state liquor stores." It is apparent that the legislature so provided in realization of the fact that the state was thus embarked in a business enterprise, the conduct and the handling of the funds of which should be on a basis appropriate to a business rather than upon the basis devised by the people and their representatives for the handling of their political affairs and funds, and that only the tax and license fees and the net proceeds from the liquor sales were to become part of the political funds of the state as distinguished from its business funds under the control of the Board. The provision is further confirmed by the reference in other legislative enactments, such as section 1 of Chapter 14, Laws of 1941, to the disposition by the State Treasurer of "allnet revenues and receipts received by him from and under the operation of the State Liquor Control Act." Thus, although he is designated as ex-officio the treasurer of the Liquor Control Board by section 192, Revised Codes, it seems clear that until determined to be "net revenues and receipts" the liquor sales moneys are held by him as the Board's treasurer under the Liquor Control Act rather than as treasurer of the state's political funds under the provisions relating to the political funds and expenditures of the State as such. The Board therefore having full control of the business funds[12, 13] in question under legislative mandate, the establishment of a revolving fund for the Liquor Control Board by the Board of Examiners is neither applicable nor necessary, thus disposing of the defendants' first question. In view of what has been said, the remaining questions submitted by the defendants must be answered in the affirmative, *Page 294 with the proviso that the practice followed should be impartial and nondiscriminatory as among the holders of permits of any class. We find also that it is the plaintiff's duty to honor the draft in question, and others lawfully issued by the Board under the Liquor Control Act, and as ex-officio treasurer of the Board to accept its lawful deposits, whether they represent full or partial cash payments for liquor purchased or agreed to be purchased from the Board. Let judgment be entered in accordance herewith. ASSOCATE JUSTICES ANDERSON and MORRIS concur.