Clark v. Adams, 80 Miss. 219

Clark v. Adams

80 Miss. 219 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

There was error in admitting evidence of the TJnited States, internal revenue license without notice to produce, it being-shown to have been surrendered to Clark. The general rule forbidding parol evidence of the contents of a written instrument is not varied by ch. 104, acts 1900, and any testimony of the fact of the possession of such a document necessarily involves the contents of the paper and the time it covered in. *227reference to the date of its issuance and expiration. In this record the court allowed testimony of these facts. But the case was rightly decided notwithstanding any errors on this line, because the uncontradicted evidence was overwhelming that Mr. Clark’s doings brought him within .the purview of code 1892, § 1590. Notwithstanding he was a farmer, he had a room in his dwelling house where were found whisky in barrels and in cases, and wine, and flasks and bottles; and two men called for whisky, and he took them, as if in usual course, to that room, sold to each a flask of whisky, which he drew through a funnel from out of the barrels. One must be blind, indeed, not to necessarily infer a systematic violation of law. A man may have'more than one “place of business.” Many have a number of such places. And, if he have such a place for selling liquors, it is his place for that business; and § 1590 does not mean that the place must be a place where he carries on also other business than that of unlawful retailing.

No precedent assessment was necessary to the attachment. The idea that it was necessary arises from a misconception of the statute and the decisions interpreting it. We must not confuse § 1109, code 1880, and the decisions on that, with § 1590, code 1892, and the decisions on that. The former makes the offender “subject to pay the regular retail tax,” and requires the sheriff to assess this tax. Under this it was with perfect propriety held that the state revenue agent could not sue unless the tax collector refused or knowingly failed to do-so. State v. Thibodeaux, 69 Miss., 92 (10 So., 58). And with equal propriety it was held in Thibodeaux v. State, 69 Miss., 683 (13 So., 352), that the revenue agent could not sue before assessment by the sheriff, because, under that statute, it was not a debt until assessment made it such. But § 1590 of the code, 1892, is materially different. By that section it is provided that the offender should be subject to pay the state, county or municipality each $500, which the sheriff or revenue agent should “assess and collect.” *228This is the first clause of the section. It then proceeds, however, to provide that “in addition” the state, county, or municipality might “sue for and recover,” jointly or separately, each, $500, and might commence the suit by attachment. Now, under the first clause it was held in McBride v. State Revenue Agent, 70 Miss., 716 (12 So., 699), that so much of it as authorized the sheriff to collect “by distress” wras unconstitutional, being prohibited by our constitution (section 14) against depriving one of his property without due process of law. But under the last clause of § 1590, “in addition” it is provided as a penalty that the state, county, or municipality may, by attachment, sue for and recover, each, $500. The propriety of such procedure is distinctly recognized in Adams v. Fragiacomo, 70 Miss., 799 (14 So., 21), decided before the act of 1894. If any doubt could remain, it is removed by sec. 2, ch. 34, acts 1894, giving expressly to the revenue agent power to sue for all “penalties or forfeitures.” It follows that he properly sued in the case before us, and without previous assessment. An assessment of a penalty is absurd, because, as soon as the forbidden act was done, the penalty was incurred, and to assess would serve no purpose but to warn the offender to get his property beyond reach. State v. Johnson, 72 Miss., 902 (17 So., 682). By the suit, defendant whose property is attached gets his “due process of law.” This last-cited case also decides that § 1590 creates a new ground of attachment distinct from the general chapter on attachments. Under the latter the grounds of attachment may be all true, and yet there may be no valid debt. But under § 1590, if the ground be true, to wit, the offense, the penalty attaches; and so we hold that the determination of the issue on the affidavit for attachment determined the whole matter, and that there need be no declaration and trial of a question of debt or no debt. This is for a penalty, not a debt. If defendant succeeds on the issue on the affidavit, the state loses entirely. If the state succeeds, that *229very issue of whether defendant is guilty settles the whole matter, and the penalty attaches. It is thus legally ascertained that he is liable to the penalty, and the same trial over again on a declaration in debt would be folly.

Affirmed.