Range Pontiac Sales Co. v. Dickinson

Me. Justice Tomlinson delivered the opinion of the Court. Range Pontiac Sales Company sold one Ed Ayers an automobile. In part payment Ayers executed a note of — 230 — $1,410, and title to this automobile was retained to secure payment of this note. The Sales Company at once sold this note to the Citizens Bank of Elizabethton, endorsing it with recourse. Neither the 'Sales Company nor the Bank had any information at this time that Ayers had a reputation (if he did have) of being a violator of the Federal or State intoxicating liquor laws. Three weeks after the aforesaid transaction, Ayers was transporting a quantity of moonshine whiskey in this automobile, and while so doing was apprehended by the sheriff of Carter County. The whiskey was, of course, unstamped. The sheriff took possession of this automobile and promptly turned it over to the Federal Alcohol Tax Unit. Sixty-four days thereafter, the federal grand jury having failed to indict, this federal bureau delivered this automobile to the Tennessee Commissioner of Finance and Taxation. That official at once proceeded to advertise this car for sale as a vehicle confiscated by reason of the fact that it had been used to transport unstamped alcoholic beverages, Section 6648.25 of the Code Supplement. In the meantime, Ayers had defaulted in the payment of his note. Therefore, as between Ayers, on the one hand, and, on the other hand, the Sales Company and the Bank, the latter two became entitled to possession of the automobile for the purpose of sale for satisfaction of this note in accordance with the provisions of the Conditional Sales Law. In this situation, and during the course of the aforesaid advertisement, the Sales Company and the Bank, acting under the authority of Section 6648.25 of the Code Supplement, filed their petition with the State Commissioner of Finance and Taxation for an order releasing to them this automobile. The Commissioner, after a — 231 — bearing, denied tbe petition on tbe ground tbat neither of petitioners bad made inquiry of tbe proper law enforcement officers at the time of tbe transaction with Ayers as to whether Ayers bad a reputation for violating tbe State and Federal laws with reference to intoxicating liquors, Code Section 6648.25. Accordingly, tbe Commissioner ordered tbat this automobile be sold and tbe proceeds thereof “turned over to the Department of Finance and Taxation as required by law”. Tbe Sales Company and tbe Bank filed their petition for certiorari, Code Section 6648.26. Tbe Circuit Court agreed with tbe Commissioner and, therefore, “affirmed and sustained” tbe order of tbe Commissioner “in all respects”. Tbe case is here on tbe appeal in error of tbe Sales Company and tbe Bank. In considering what we regard as tbe controlling question in this case it will be assumed tbat Ayers bad a reputation for violating tbe State and Federal laws with reference to intoxicating liquors at tbe time of tbe transaction with tbe Sales Company and tbe Bank. It will be further assumed, and it is an undisputed fact, tbat neither of tbe plaintiffs in error made inquiry of tbe proper State or Federal officials as to whether Ayers did have such a reputation ,at tbe time of this transaction. Based upon these assumptions tbe Commissioner was authorized by Section 6648.25 to deny tbe petition of tbe Sales Company and of tbe Bank for an order directing tbat they be given possession of tbe automobile, provided tbe statute, under tbe facts of this case, empowered tbe Commissioner to sell this automobile as a confiscated vehicle. On tbe other band if, under tbe facts of this case, tbe statute did not empower tbe Commissioner to so confiscate this automobile, then, tbe Commissioner is not entitled to its possession, and should have entered an order directing tbat its — 232 — possession be turned over to these plaintiffs in error in accordance with their rights under the title retained purchase money note. The controlling question, therefore, is whether the Commissioner was empowered under the facts of this case to sell this automobile as a confiscated vehicle. Section 6648.24, Code Supplement, provides that automobiles transporting unstamped alcoholic beverages “may be seized by the commissioner of finance and taxation or any duly authorized representative, agent or employee of the department, or sheriff, deputies sheriff, or constables of any such county, and said goods shall he delivered to the department of fincmce and taxation for sale at public auction to the highest bidder after due advertisement”. (Emphasis supplied.) The official who seizes the automobile must at that time give the person found in possession thereof a receipt and file a copy thereof in the Department of Finance and Taxation, if the seizure be for confiscation under our aforesaid statute. The Commissioner of that department must within five' days advertise the property for sale, and sell pursuant to said advertisement unless there intervenes a petition for an award of possession by a claimant of some interest in the property. The confiscation statute carried in the code sections mentioned is primarily a revenue statute enacted for the purpose of aiding the Tennessee Department of Finance and Taxation in the collection of intoxicating liquor taxes. Casone v. State, 176 Tenn. 279, 283, 140 S. W. (2d) 1081. Apparently, the sheriff, however, in seizing this automobile, was not acting as a representative of the 'State Department of Finance and Taxation. This is manifested by the fact that the sheriff, after taking possession of this automobile, instead of delivering — 233 — it to the Tennessee Department of Finance and Taxation, as expressly required by this statute if proceding thereunder, turned it over to an alcoholic tax unit of the federal government for disposition in accordance with federal law. Whatever his purpose may have been in so acting, the sheriff did not comply with this requirement of this confiscation statute. In Wells v. McCanless, 184 Tenn. 293, 198 S. W. (2d) 641, 643, this Court considered the extent of the authority of the Commissioner of Finance and-Taxation to confiscate an automobile which had been used for the transportation of unstamped intoxicating liquors, Code Section 6648.24 et seq. It was held that this statute “lays down certain procedure to be followed”; that “this procedure constitutes the conditions under which the confiscation is accomplished”, and that when there is a “failure to observe the conditions under which confiscation might be accomplished, the confiscation has not occurred and the title in .the automobile remains in” those having such title at the time of seizure by the sheriff or other officer. This rule of general .application is a result of the general legal principle that “forfeitures are not favored; they should be enforced only when within both letter and spirit of the law.” Wells v. McCanless, supra. In the case at bar there was ,a failure in the respect above mentioned to observe the conditions under which confiscation might be accomplished. Hence, under the holding of Wells v. McCanless, supra, as well as on the aforementioned rule of general application, there was no confiscation in this case. That being the situation, the Department of Finance and Taxation could not legally withhold from Range Pontiac Sales Company and Citizens Bank of .Elizabethton the possession to — 234 — which, they were otherwise entitled by reason of the title retained note of which they were the holders and owners. The judgment of the Circuit Court will be reversed. An order will be entered awarding possession of this automobile to the plaintiffs in error. All costs will be adjudged against the Commissioner of Finance and Taxation.