Southern Liquor Distributors, Inc. v. Daniel

The opinion of the Court was delivered by Mr. Justice Baker. This is an action in the original jurisdiction of the Supreme Court to prevent towns and cities of South Carolina from enforcing, by arrest and prosecution, parties in the employ of wholesale liquor distributing companies, engaged in delivering whisky, with their trucks, to retail license stores within said towns and cities in consummation of the sale of the whisky being delivered, ordinances of said towns and cities requiring trucks, nonresident, delivering goods, wares, and merchandise within such towns and cities without first *221 purchasing from said towns and cities a license so to do, which said ordinances provide for fine or imprisonment upon failure to procure a license. It is not questioned that such ordinances are valid and enforceable, except where the Legislature has acted, but if such ordinances are in conflict with the expressed wish of the Legislature, then such ordinances are, to the extent the Legislature prohibits, void and unenforceable. The inherent power to permit or to prohibit the levying of such a tax by municipalities is in the Legislature. See Hill v. City Council of Abbeville, 59 S. C., 396, 38 S. E., 11; Carroll v. York, 109 S. C., 1, 95 S. E., 121; American Bakeries Co. v. City of Sumter, 173 S. C., 94, 174 S. E., 919. Act No. 232 of the General Assembly of South Carolina (page 325), approved May 14, 1935, making legal the sale of alcoholic beverages within the State, contains the following provision (page 330, § 8) : “§ 8. The licenses and excise taxes herein provided, for the privilege of engaging in the business of manufacturing and selling alcoholic liquors, shall be in lieu of all other taxes and licenses — State, County, and municipal — except property, State income, and corporation license taxes.” Section 11 of Article 8 of the Constitution of 1895 prohibits the General Assembly from delegating to any municipal corporation the power to issue licenses to sell alcoholic liquors or beverages. In legalizing the sale of alcoholic beverages in this State, the General Assembly was not unmindful that towns and cities were entitled to a portion of the revenue derived from the licenses, taxes, and penalties on account of the violation of bonds collected under said Act, and therefore 15 per cent, thereof is apportioned to the municipality in which the licensee is conducting business, and which percentage is based upon the actual retail sales and the fees collected in said municipality, regardless of where the stamps may be affixed to the containers. *222 The dissenting opinion in this case succinctly sets forth the facts, and the issues raised by the pleadings. We will not repeat. However, we agree that the paramount question to be decided is stated in said opinion, as follows: “Does the imposition of a license fee for the delivery by the wholesaler of his whiskies in his own trucks violate the provisions of the Statute?” There has been special legislation with reference to the sale of liquor, and the statute itself prohibits municipalities from imposing any tax on a wholesaler or retailer of whisky except property, and municipalities are bound strictly by the statute and can enforce no other tax or license. Since a municipality cannot charge a tax or license for engaging in the business of manufacturing and selling liquors, can a town or city circumvent the statute by charging an additional tax under the guise of a delivery license? Is not the delivery of the liquor very necessary to the consummation of the sale of the liquor, and is there any sale until there is a delivery, actual or constructive? If this be so, then the wholesalers are still engaged in the business of selling liquor when they are delivering it. The case of Croswell & Co. v. Town of Bishopville, 172 S. C., 26, 172 S. E., 698, cited by respondents as authority for upholding the ordinances of the various towns charging a delivery license on these trucks, allowed the Town of Bishopville to collect a license from Crosswell & Co. when it delivered its goods by its own trucks to its customers on the ground that Crosswell & Co. were doing business within the Town of Bishopville. The case of Pee Dee Chair Co. v. City of Camden, 165 S. C., 86, 162 S. E., 771, held that a single delivery of chairs, when there was no showing that other deliveries were contemplated, did not constitute such doing of business as would subject the chair company to the payment of a license tax; and the case of American Bakeries Co. v. City of Sumter, supra, held that a town or city can make a different classification as between the residents of a city and nonresidents doing business within the city. *223 Following the cases just above cited to a logical conclusion, we hold that where the trucks of petitioners are delivering whisky, for which petitioners had orders, then petitioners are doing the business of selling whisky, and when the statute specifically sets forth the tax for which one engaging in the business of selling alcoholic liquors shall be liable, and in plain, understandable, and unambiguous language, declares that such taxes “shall be in lieu of all other taxes and licenses — State, county, and municipal — except property, State income, and corporation license taxes,” then an ordinance of a town or city requiring a delivery license of such wholesaler of alcoholic liquors is null and void, and, strange as it may seem, has no potency. Respondents raise the question of procedure. This is not a proceeding to enjoin the collection of a tax, but to enjoin the criminal prosecution of employees of petitioners for violating the alleged license ordinances of the respondents, towns and cities, by their law enforcement officers. The temporary restraining order and rule to show cause was granted under the authority of Cain v. Daly, 74 S. C., 480, 55 S. E., 110; Palmetto Golf Club v. Robinson, Sheriff, 143 S. C., 347, 141 S. E., 610, and Ex Parte Bates (City of Sumter v. Bates), 127 S. C., 167, 120 S. E., 717. Having held the ordinances of respondents, towns and cities, void as to the delivery of alcoholic liquors by wholesalers in their own trucks, it follows that the return of respondents to the rule to show cause be adjudged insufficient, and the temporary restraining order heretofore granted is made permanent. Messrs. Justices Carter and Fisi-iburne concur. Mr. Chief Justice Stabler and Mr. Justice Bonham dissent.