October 10, 2012

Jung Brewing Co. v. Commonwealth, Laurel, 1906 [2]





98 S.W. 307; 1906 Ky. LEXIS 309; 30 Ky. L. Rptr. 267

December 12, 1906, Decided

Appeal from Circuit Court, Laurel County.
"Not to be officially reported."
The Jung Brewing Company was prosecuted and fined for selling beer without a license, and it appeals.


COUNSEL: J. W. Alcorn, for appellant.

N. B. Hays, Atty. Gen., and Chas. H. Morris, for the Commonwealth.




 [*307]  HOBSON, C. J. The Jung Brewing Company is a corporation created under the laws of the state of Ohio. It was indicted in these two cases in the Laurel circuit court for selling beer in Laurel county without a license. It was fined $ 100 in each case. The proof on the trial showed that the defendant had an agency at Pittsburg, and that from this agency had sent out a wagon with beer, selling the beer at London and East Bernstadt, two towns which are each about two or three miles from Pittsburg. The defendant produced on the trial the following receipt from the auditor: "No. 333. State of Kentucky. Auditor's Office. Tax on Rectifiers. Frankfort, July 10, 1905. Received, the receipt of the Treasurer of the State of Kentucky, of this date, to the Jung Brewing Company, by cur., for twenty-five ($ 25.00) dollars on account of taxes collected on agency of wholesale dealers of domestic beer and malted  [**2] liquors, 10th day of July, 1905, and ending 30th day of June, 1906. $ 25.00. S. W. Hager, Auditor." The circuit court held that this was only a license on the agency at Pittsburg, and did not operate as a license to sell at London or East Bernstadt, where there was no agency. The jury found the defendant guilty in each case, and it appeals.

The sales were made in quantities of five gallons. It is insisted that these were wholesale transactions, and that no license was required. Section 4224, Ky. St. 1903, which was in force at the time of the transactions referred to, among other things, provides as follows: "Before engaging in any occupation or selling any article named in this subdivision of article 10 of this act, the person desiring, to do so shall procure license and pay the tax thereon as follows: * * *

"That all corporations, companies and associations, copartnerships, or individuals, citizens of, or residing in this state and engaged in the business or occupation of owning or operating breweries shall annually pay a license tax to the state therefor. That all foreign corporations, associations, companies, copartnerships, or individuals, engaged in the business of selling by wholesale  [**3] in this state in the usual course of trade, beers or malted liquors, shall annually pay a license tax to the state therefor as hereinafter specifically provided for. * * *

"For each brewery in this state, two hundred dollars.

 [*308]  "For each agency in this state established by resident brewers or resident wholesale dealers in domestic beer or malted liquors, twenty-five dollars.

"For each agency established and operated in this state by a foreign brewer or foreign wholesale dealer or jobber of any foreign beers or malted liquors, twenty-five dollars. * * *

"All license taxes imposed shall be paid into the state treasury on or before the tenth day of July of each year, and upon payment of such taxes the Auditor of Public Accounts shall issue receipt to the person paying same, and issue a license in proper form authorizing the person to engage in the business for which the tax was paid, which license shall be conspicuously posted at his principal place of business in this state. Foreign dealers having no office in this state, duplicates of the receipts showing payment of license tax and expiration thereof shall be furnished by the foreign dealer to each salesman traveling and operating in this  [**4] state.

"Any foreign corporations, associations, company, copartnership or individual who shall in the usual course of trade sell in this state distilled spirits, or rectified, blended or compounded single stamp spirits, or wines, ales, mineral waters, or any vinous liquors, or beers or malted liquors, either upon orders from citizens of this state or through resident agents or through traveling salesman, shall for the purpose of the act be deemed doing business in the state of Kentucky, and shall be liable for the license tax imposed and all penalties provided for by law for failure to pay such taxes."

Under these provisions it was incumbent upon the defendant to have a license before selling beer by wholesale in this state. It is unnecessary for us to determine whether the paper offered in evidence was a license. It was not a license at any rate to sell at any other point than that at which the agency was located. The defendant cannot establish an agency at one point and send out its wagons from this point and sell at other points in the county. In the case of New South Brewing Company v. Commonwealth (decided on October 9, 1906) 96 S. W. 805, it was held that a manufacturer selling  [**5] his own make is not exempt from the local option law unless the sale is made in the district where the product is manufactured. The statutes do not discriminate against the nonresident manufacturer or wholesale dealer. A nonresident of this state may establish his factory in this state just as a resident of the state may. The product of the factory, whether owned by a resident or a nonresident, may be sold by wholesale in the district where it is made, although the local option law may be in force in that district. But no one, whether selling his own make or another's may otherwise sell in a local option district. The purpose of the statute is to protect the local option districts, and at the same time not to do an injustice to manufacturers located in such districts, but to allow them to dispose of their product in the usual course of business. The statute is not a violation of any right secured by the Constitution of the United States. It does not give any one an advantage over another. It simply allows all manufacturers to sell their own make by wholesale in the usual course of business where it is made.

On the whole case, we do not see that any right of the defendant was prejudiced  [**6] on the trial. The judgment in each case is therefore affirmed.

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