Opinion
No. 33962.
January 22, 1940. Suggestion of Error Overruled February 19, 1940.
1. INTOXICATING LIQUORS.
In state tax collector's suit to collect tax for unlawful sale of intoxicating liquors at defendant's alleged place of business by attachment, evidence that defendant filed verified claim for exemption of large portion of personalty in such place from levy under attachment and acknowledged in such claim that remainder of such personalty was sold to him under retain title contracts showed that he owned and operated such place (Code 1930, secs. 1766, 2000, 2001).
2. APPEAL AND ERROR.
One appealing with supersedeas from decree enjoining sale of intoxicating liquors at his place of business is in no position to contend successfully that he is not owner of such place, though oral testimony offered by appellee on such issue did not clearly establish such ownership (Code 1930, secs. 2000, 2001).
3. INTOXICATING LIQUORS.
The state tax collector had right to bring suit to collect, by attachment, tax imposed on behalf of state and county for selling or allowing sale of intoxicating liquors unlawfully at defendant's place of business in such county and to suppress such place as nuisance by injunction (Code 1930, secs. 2000, 2001).
APPEAL from the chancery court of Coahoma county; HON. R.E. JACKSON, Chancellor.
Roberson Luckett, of Clarksdale, for appellant.
There was no evidence which in any wise connected the defendant with either the possession and sale of the whiskey or the ownership or operation of the place of business.
The reputation of the place at the time of the trial is not proof of what might have been its reputation sometime prior thereto.
22 C.J. 480.
The only fact that the reputation evidence would tend to support is that the place was a nuisance.
Handy v. State, 63 Miss. 207; Rosetto v. Bay St. Louis, 97 Miss. 409; N.O.M. C.R. Co. v. Mauldin, 103 Miss. 244, 60 So. 211.
The reputation evidence could not be used as a foundation for a finding that the defendant maintained the nuisance, or that he had any connection with any fact, the existence of which constituted the place a nuisance.
The lower court was without jurisdiction to suppress the place of business as a nuisance, at the instance of the state tax collector.
This is a statutory proceeding. The authority of the complainant to seek the suppression of the place complained of as a nuisance must be found in the statute, if it exists at all. The statutes do not authorize the complainant to seek such relief, nor do they authorize the court to grant the complainant such relief. As well pointed out by this court in the case of Malouf v. J.B. Gully, 187 Miss. 331, the statute does not give the state tax collector the authority to have the place suppressed as a nuisance; such proceedings, if to be entertained, must be instituted by others than the state tax collector.
W.W. Venable, of Clarksdale, and Denman Everett, of Greenwood, for appellee.
It is contended that the evidence was insufficient to warrant the court in entering a judgment against Vincent Tuminello.
It is immaterial whether Vincent Tuminello had legal title to the land and building provided that he operated the place. By the general understanding in the community as testified to by Mr. Longino, it was understood and known to be Vincent Tuminello's or Skeeter Tuminello's place of business, and he was known and understood to be the operator of it. The question is whether or not this opinion on the part of the chief of police, he being in a position to form an intelligent opinion, is admissible in evidence sufficient to prove the fact of possession of the place in Vincent Tuminello.
In the case of Steiner v. Tranum, 98 Ala. 315, 318, a witness was allowed to testify that a person was the owner of certain personalty. In Wright v. State, 136 Ala. 139, 34 So. 233, the opinion of a witness that a person was in possession of property was admitted. In the following cases the witness who was in a position to know was permitted to testify as to the possession of a person with respect to property.
Driver v. King, 145 Ala. 585; Cabaniss v. State, 8 Ga. App. 129, 68 S.E. 849; Knight v. Knight, 178 Ill. 553, 53 N.E. 306; Chicago v. Peck, 196 Ill. 260, 63 N.E. 711; State v. Brundige, 188 Iowa 92, 91 N.W. 920; Knapp v. Smith, 27 N.Y. 281; Miller v. R. Co., 71 N.Y. 385; Hunnicutt v. Higgenbotham, 138 Ala. 472, 35 So. 469; Roscoe v. Jefferson, 142 Ala. 705, 38 So. 246; Perkins v. Sunset Tel. Tel. Co., 155 Cal. 712, 103 P. 190.
The action in the case at bar is brought under Sections 2000 and 2001 of the Code, and the action is civil in character.
State v. Marshall, 100 Miss. 626.
Since the action is civil in its nature the rules governing the burden of proof are those which are applied in civil cases, namely, that the complainant has only the burden to establish his case by a preponderance of the evidence.
State ex rel. Dist. Atty. v. White, 178 Miss. 542; Pigford v. State, 183 So. 295; Palmer v. Fair Co., 140 Miss. 294; Railroad Co. v. Mauldin, 103 Miss. 244.
The following cases hold that a witness may testify as to his opinion as to who is the owner or possessor of property or who owned the business.
Potts v. Buckley, 115 A. 727; Wolfe v. Williams, 69 N.Y. 621; Pichler v. Reese, 171 N.Y. 577; Hawley v. Bond, 20 S.D. 214, 105 N.W. 464; Wigmore, Secs. 1246, 1374; 3 How. 205 (Miss.).
Section 2000 authorizes in expressed terms the state tax collector and others to bring suit for the penalty. Section 2001 grants specific jurisdiction to the chancery court for the suits authorized in Section 2000 and provides "and the chancery court shall have authority to suppress as a nuisance any place of business where the preceding section is violated and by proper judgments and orders to punish and restrain the violators thereof."
In as clear language as possible, Sections 2000 and 2001 authorize the suit by the state tax collector in the chancery court for the penalty with the further provision that in such suit the chancery court may suppress as a nuisance any place of business where liquor is sold, or given away, or possessed or permitted to be sold, or given away, or possessed in connection with the business.
Certainly, an injunction is the only way by which the chancery court could suppress the nuisance of the sale of liquor in connection with the business.
We call the court's attention to the fact that in the case at bar no bond was required by the court. A bond was asked for not under Section 2007 but as being an appropriate way to suppress a nuisance, the court being given power by Section 2001, "by proper judgments and orders to punish and restrain, etc." In no respect was 2007 involved in the suit at bar. The chancellor did not require a bond and therefore this is not ground for complaint.
General reputation of a place as one where intoxicating liquors were kept and sold is admissible.
State ex rel. Dist. Atty. v. White, 178 Miss. 542.
This is a proceeding by the State Tax Collector under the authority of Sections 2000 and 2001, of the Code of 1930, to collect by attachment the tax imposed on behalf of the State and Coahoma County against the appellant for selling intoxicating liquors unlawfully, or allowing the same to be sold, at his place of business in said county, and for the suppression thereof, as a nuisance, by means of an injunction. There was a decree for the tax sued for, and which decree also enjoined the further sale of such liquors at the place of business in question.
It is urged by the appellant that the proof failed to show (1) that he owned and operated the place of business at which the intoxicated liquor is claimed to have been sold, and (2) that he sold such liquor, or allowed the same to be sold, at any place of business owned or operated by him.
In answer to the first contention, the record discloses that appellant filed a claim of exemption, under oath, as a resident citizen and householder, under Section 1766 of the Code of 1930, claiming as exempt from levy under attachment a large portion of the personal property which, according to the officer's return on the writ, was located in the place of business in question; and also acknowledged in said claim of exemption that the remainder thereof had been sold to him under retain title contracts made exhibits to the pleas of the respective claimants thereto. Moreover, he appeals here with supersedeas, so far as the decree retaining the injunction against the sale of intoxicating liquors at the place of business is concerned; and hence he is not in a position to successfully contend that he is not interested as owner, even though the oral testimony offered by the appellee on that issue may not clearly establish ownership.
On the second contention, we are unable to say that the chancellor was in error in finding that the person who sold the whiskey over the counter in the place of business was allowed to do so by the appellant as owner and operator, and especially in view of the proof that the general reputation was that it was a place where intoxicating liquors could be bought and were sold.
The challenged right of the appellee to bring the suit is upheld in the case of Noe v. Gully, State Tax Collector, 189 Miss. 1, 193 So. 36, decided today by this Division of the Court.
Affirmed.