Walter W. LEWIS, Otis L. Livington, and S. J. Pratt, as members of and constituting the South Carolina Alcoholic Beverage Control Commission, Appellants, v. Irene L. GADDY, Respondent.
19035
Supreme Court of South Carolina
April 7, 1970
(173 S. E. (2d) 376)
Under queston IV of the brief, appellant argues a point which was not included in the issues presented to the lower court, nor in any exception on this appeal, and is not properly before us.
For the foregoing reasons, the writer is of the opinion that the petitioner is not entitled to the relief sought and that he is properly held in custody by the respondents for the service of the sentence imposed upon him by Judge Eppes on April 9, 1968, and it is so ordered.
April 7, 1970.
BUSSEY, Justice.
This is a proceeding instituted by the appellants as members of and constituting the South Carolina Alcoholic Beverage Control Commission, who, for simplicity, will hereinafter be referred to simply as the Commission. The respondent is the proprietress of a restaurant and bar known as “Gaddy‘s Owl Club“, located at Myrtle Beach, South Carolina, and, in connection with such business there was issued to her by the Commission not only a beer and wine permit, but a permit for the possession and consumption of alcoholic liquors, pursuant to the respective applicable statutes.
On January 26, 1969, the husband of respondent, who was also her employee, was in charge of the place of business. He had parked upon an adjacent parking lot a Volkswagen which was locked. At the request of agents of the Commission, he opened the Volkswagen and allowed a search of the interior, which produced some twenty odd half pints of legal alcoholic liquors. Based thereupon this proceeding was instituted and, following a hearing, the Commission, on May 26, 1969, issued an order suspending respondent‘s permits for the remainder of the year, but allowing her to pay in lieu of such suspension a monetary penalty in the amount of $700.00. She paid the monetary penalty under protest and appealed to the Court of Common Pleas for Horry County.
That court reversed the findings of the Commission and held that respondent‘s employee was in lawful possession of the alcoholic liquors and that the Commission had therefore wrongfully penalized the respondent.
Although counsel for the parties state and argue two questions, the appeal, to our mind, presents only a single
“The Commission did find that one of your employees, on January 26, 1969, did illegally possess legal liquor on your licensed premises in that your employee did illegally possess legal liquor in his motor vehicle which was parked on your licensed premises on said date.”
Respondent apparently concedes that if such possession was, in fact, illegal, she is subject to the penalty imposed. The Commission contends that the possession was illegal by virtue of the provisions of
“It shall be unlawful for any person to store or have in his possession any alcoholic liquors in his place of business other than a licensed liquor store.”
Under prior decisions of this court construing this Code section, there is no doubt that the parking lot in the instant case was a part of the place of business of the respondent. Accordingly, it is clear that the possession here prior to the year 1967 would have been illegal, but in that year there was enacted by the General Assembly what has become commonly known as our unique “brown bagging law“, Act No. 398 of the Acts of 1967, Section 10 of the said Act having been subsequently codified as
“A. Notwithstanding any other provisions of law, it shall be lawful, subject to the provisions of subsection ‘B’ of this section, for any person who is at least twenty-one years of age to transport, possess or consume lawfully-acquired alcoholic liquor in accordance with the following: (subsection B is not here pertinent)
“(1) Any person may transport alcoholic liquors to and from any place where alcoholic liquors may be lawfully possessed or consumed * * *
“(4) It shall be lawful for any person to possess or consume alcoholic liquors on the premises of any business establishment, except on Sunday, provided the business establishment meets the following requirements:
“(a) The business is bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging; and
“(b) The business has a permit from the Alcoholic Beverage Control Commission for this purpose * * *.” (Emphasis added.)
The 1967 Act specifically repealed several Code sections but made no mention of
Statutes in pari materia, such as
In accordance with the last mentioned rule of construction, if the legislative intent is expressed in clear and unambiguous language, there is no room for construction and no need for resort to the other rules of construction above mentioned. In the present case we think there is no need for resort to such rules of construction, but if resorted to, they reinforce the conclusion which we reach.
It is obvious, we think, from the plain and clear language of
The Commission contends, inter alia, that the words “any person“, appearing repeatedly in
The Commission argues that the parking lot here was a part of the premises of the business establishment for the purpose of
For the purposes of the instant case, it makes no difference whether the parking lot was or was not a part of the premises of the business establishment. If it was a part of the premises, it follows that the possession was expressly permitted and lawful. If the parking lot was not a part of the premises,
For the foregoing reasons we conclude that the appeal is without merit and the judgment of the lower court is, accordingly,
Affirmed.
MOSS, C. J., and LEWIS and BRAILSFORD, JJ., concur.
LITTLEJOHN, J., dissents.
LITTLEJOHN, Justice (dissenting):
I respectfully dissent and would reverse the order of the lower court, and would hold that the possession of alcoholic
Under the view I take, Act 398 of the Acts of 1967, now codified as
In order to determine the true intent of the legislature it is necessary to view the law (1) as it was prior to the amendment, (2) to consider those statutes expressly repealed, (3) to consider those existing statutes intentionally retained, and (4) to consider the possession and consumption amendment itself. The obvious overall purpose of the amendment should be considered.
In City of Spartanburg v. Leonard, 180 S. C. 491, 186 S. E. 395 (1936), this court said:
“In ascertaining the intent of the Legislature, the court is not to be governed by the apparent meaning of words found in one clause, sentence, or part of the act, but by a consideration of the whole act, read in the light of conditions and circumstances as they appeared to the Legislature, and the purpose sought to be accomplished.”
The emphasis which the majority opinion places on “notwithstanding any other provision of law” and “any person” is not warranted when one considers the purpose which the amendment seeks to accomplish. These words must be interpreted in the light of the fact that
“Unlawful possession. It shall be unlawful for any person to store or have in possession any alcoholic liquors in his place of business other than a licensed liquor store. A place of business shall include:
“(1) any place where goods, wares or merchandise are sold, offered for sale or distributed, and also places of amusement; * * *”
This section was obviously originally enacted and has been intentionally retained by the legislature in order to prohibit the owner of an establishment from keeping in possession liquor in “his place of business.” It is directed toward all business establishments except liquor stores. The purpose is to aid in law enforcement, to limit sales of liquor to liquor stores, and prohibit bootlegging. If owners and all employees of licensed restaurants are permitted to possess liquor in the restaurant and in the parking lot, a near hopeless law enforcement problem is created and it is reasonable to assume that such was not intended. The legislature appreciated the fact that it was not necessary to repeal
“Liquor not to be kept in certain places. It shall be unlawful for any person to have in his possession for any purpose any quantity of such liquors in any room in which or in connection with which there is maintained or conducted any place of amusement, clubhouse, fraternity house, lodge or meeting place, cafe, rest room, store, office, shop or
factory and no such place shall be considered a residence within the meaning of this section.”
This section was directed to “any person” and it is this section which (prior to the amendment) made it unlawful to possess and drink alcoholic liquors in a restaurant. It was repealed because repeal was necessary to accomplish the purpose of the possession and consumption amendment.
“Resorts for drinking declared nuisance.—All places where persons are permitted to resort for the purpose of drinking alcoholic liquors or beverages are hereby declared nuisances * * *”
This section was also repealed because repeal was necessary in order to accomplish the purpose of the possession and consumption amendment.
The conflict in the law arises because
It would seem apparent that the purpose of the amendment was solely to legalize the consumption of alcoholic liquor in licensed restaurants by patrons. Possession of the liquor and transportation of it to and from the restaurant is expressly permitted because transportation to and from and possession at a restaurant are essenital to consumption.
The legislature repealed Sections
It was held in State v. Hood, 181 S. C. 488, 188 S. E. 134 (1936):
“It is presumed that the Legislature was familiar with prior legislation, and that if it intended to repeal existing laws it would have expressly done so; hence, if by any fair or liberal construction two acts may be made to harmonize, no court is justified in deciding that the last repealed the first.”
Repeal of statutes by implication is not favored. Courts should be slow to hold that a statute has been repealed by implication and should avoid so holding if it can be done on any reasonable hypothesis and can arrive at another result by any construction which is fair and reasonable.
“Where a statute expressly repeals specific acts, there is a presumption that it was not intended to repeal others not specified. In such case there is an implied approval of the statutes not specified, as well as evidence of an intention to leave them undisturbed, and the doctrine of implied repeal does not apply.” 82 C. J. S. Statutes § 289 (1953).
The two statutes can be reconciled and are susceptible of a construction which will render both operative without doing violence to either. It is the duty of the court to so construe them.
“Legislative Intent as Controlling Factor.—The question whether a new act works an implied repeal of an existing statute is one of legislative intention in the enactment of the alleged repealing act. When such intention of the legislature can be ascertained, it is the duty of the courts to give it force and effect, since the intent of the law is its vital force, and the province of the courts is to ascertain and effectuate the valid legislative intent. Indeed, one statute will not be held to repeal another by implication unless it appears,
from the terms and provisions of the later act, that it was the inention of the legislature to enact a new law in place of the old. Moreover, a repeal by implication will be carried no further than is required to gratify the legislative intent manifested in the later act. It should not be so extended as to include cases not within the intention of the legislature.” 50 Am. Jur. Statutes § 535 (1944).
In Stone & Clamp v. Holmes, 217 S. C. 203, 60 S. E. (2d) 231 (1950), this court said:
“It is a well settled principle of law that where two statutes are in apparent conflict, they should be so construed, if reasonably possible, as to allow both to stand and to give force and effect to each. The primary endeavor is to ascertain and give effect to the manifest intention of the legislature.”
The majority opinion holds that the language of the amendment makes it plain and clear that the legislature intended to allow the possession and consumption of alcoholic liquors by the operators and employees of a licensed restaurant. The effect of this is to say that there is no conflict requiring an interpretation by this court. I disagree. There is nothing in either the old law or the new to indicate that the legislature sought to liberalize the liquor law so as to permit restaurant owners and employees to possess liquor and drink on the premises. I am convinced that there is a conflict and that a practical, reasonable and fair interpretation consonant with the purpose, design and policy of the lawmakers require a contra ruling.