Mousetrap of Atlanta, Inc. v. Blackmon , 129 Ga. App. 805 ( 1973 )

Eberhardt, Presiding Judge.

The question presented in each of these appeals is whether the Revenue Commissioner is granted the power and duty by the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. L. 1937-38, Ex. Sess., p. 103; Code Ann. Ch. 58-10), as amended by Ga. L. 1964, p. 771 (Code Ann. § 58-1083), to license the sale of alcoholic beverages for consumption on the premises. In case No. 48272, the lower court ruled that the Commissioner had been granted that power and duty, while in No. 48308 the lower court ruled that he had not. Held:

Section 8 of the Act (Code Ann. § 58-1022) provides, inter alia, that "The State Revenue Commissioner shall have the following powers and duties: ... (b) To issue licenses provided for in this Act . . .” Section 9 (Code Ann. §§ 58-1023 through 58-1027) provides that "Licenses which may be issued under authority of this Act shall be as follows: (a) Manufacturers: . . . (b) Wholesalers:... (c) Retailers: A Retailer’s license shall authorize the holder to sell only in the original and unbroken package or packages, which package or packages shall contain not less than one-half pint of distilled spirits or alcoholic beverages each, and shall not permit the breaking of said package or packages on the premises where sold, and shall not permit the drinking of the contents of said package or packages on the premises where sold. It shall be unlawful for any retailer as defined in this Act to allow or permit the breaking of said package or packages on the premises where sold and any violation thereof shall be a misdemeanor and the offender thereof shall be guilty of a misdemeanor, and upon conviction, be punished as for a misdemeanor.” Thus under the original Act the Commissioner had no power to license the sale of alcoholic beverages for consumption on the premises, such sales being illegal.

The 1964 amendment (Code Ann. § 58-1083) provides: "(a) Anything in this Act to the contrary notwithstanding [certain counties and cities] may, through proper resolution or ordinance, authorize the issuance of licenses to sell distilled spirits or alcoholic beverages for beverage purposes by the drink, said sales to be for consumption only on the premises . . . (b) Every county and city as set forth in this Section shall have the full power and authority to adopt all reasonable rules and regulations governing the qualifications and criteria for issuance of any such license ... (c) Those persons who are duly licensed as wholesalers under the provisions of this Act shall be authorized to sell to any person or persons licensed as provided in this section, distilled spirits at wholesale, and the persons so licensed under this section shall be authorized to purchase such distilled spirits from a licensed wholesaler at wholesale.”

This amendment grants no authority to the Commissioner to license the sale of alcoholic beverages for consumption on the premises, nor can such authority be found by construing the 1964 amendment in relation to the Act as required by Hawes v. Dinkler, 224 Ga. 785, 789 (164 SE2d 799).¹ Nowhere in the amendment does it purport to amend Sections 8 and 9 of the Act which allow the Commissioner to issue only manufacturers, wholesalers, and retailers (package store) licenses. As the trial court held in No. 48308, "The simple fact is that the General Assembly failed to give the Commissioner of Revenue the right to issue licenses for the sale of mixed drinks.”

The lower court in No. 48272, reaching a contrary result, held that "the effect of the 1964 Amendment, in construing it in relation to the original 1938 Act is simply to broaden the definition of Retailer.’ ” However, the amendment does not use the term "retailer,” which is defined in Section 5 (f) of the original Act as "any person, firm, or corporation engaged in selling, at retail, any distilled spirits or alcohol for beverage purposes, in unbroken packages.” Code Ann. § 58-1011 (f). (Emphasis supplied). Under the lower court’s line of reasoning, a "retailer” is one who, by virtue of the 1964 amendment, is authorized to sell liquor by the drink but who is, at the same time, prohibited from doing so by Section 9 (c) of the original Act. In the same vein, the Commissioner urges that the 1964 amendment enlarged upon the activities permitted to a person holding a state retail license so that a retailer so licensed could sell by the drink for consumption on the premises. But, as previously seen, the state retail license authorizes only package sales, and package store operators would be surprised to learn that under the 1964 amendment they could also legally operate a bar on their premises. That construction is obviously untenable.

The Commissioner also contends that contemporaneous administrative construction is significant in construing a statute, citing Undercofler v. Eastern Air Lines, 221 Ga. 824 (147 SE2d 436), and pointing out that he has consistently construed the 1964 amendment as requiring a license issued by him and that the General Assembly has met many times during the interim without changing this construction. While "in the interpretation of doubtful statutes, much weight will be given such administrative and legislative interpretations” (Thompson v. Eastern Air Lines, 200 Ga. 216, 224 (39 SE2d 225); Undercofler v. Eastern Air Lines, 221 Ga. 824, 832, supra), administrative construction should be restricted to cases in which the meaning of the statute is really doubtful and must be disregarded where its invalidity is apparent. Standard Oil Co. v. State Revenue Commission, 179 Ga. 371, 376 (176 SE 1); Elder v. Home Bldg. & Loan Assn., 188 Ga. 113 (2) (3 SE2d 75, 122 ALR 738); Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 515 (21 SE2d 695, 143 ALR 343); Hawes v. Nashville &c. R. Co., 223 Ga. 527, 529 (156 SE2d 455); Fulton County v. Holland, 71 Ga. App. 455, 461 (31 SE2d 202); Brown v. Quality Finance Co., 112 Ga. App. 369 (3) (145 SE2d 99); State Farm Mut. Auto. Ins. Co. v. Barnard, 115 Ga. App. 857, 858 (156 SE2d 148); Warestores, Inc. v. Nash, 125 Ga. App. 210, 212 (186 SE2d 806). In the instant case the authority of the Commissioner to issue licenses is specifically limited under Sections 8 and 9 of the Act which were not amended by the 1964 amendment,² and we must conclude that the Commissioner’s contrary construction can not alter these clear and explicit provisions. There can be no estoppel by the exercise of a power not conferred in the statute. Code § 89-903. Cf. Standard Oil Co. v. State Revenue Commission, 179 Ga. 371, 376, supra.

Since the statute is specific in its provision that the Commissioner may "issue licenses provided for in this Act, ” and then proceeds in detail to describe and define the licenses which he may issue to (a) Manufacturers, (b) Wholesalers, and (c) Retailers, and further delimits what the licensee in each category may do or be authorized to do — none including the sale of mixed drinks or the sale of alcoholic beverages by the drink — it is inescapable that the Act does not, even as amended by the Act of 1964, extend to him the right or power to issue licenses to operators of places where mixed drinks are sold. Inclusio unius est exclusio alterius.

The Commissioner concedes that the Act, as amended, is "without specific provisions authorizing the Revenue Commissioner to issue mixed drink licenses.” His position is that the authority must be extended by implication so that he may regulate those who engage in the sale of mixed drinks, and that licensing is the only means for regulating.

With this we cannot agree. We have pointed out that his inability to license does not impair his power to regulate under the authority of the Act, as amended. Code Ann. § 58-1001 et seq. He may impose sanctions, including fines and penalties, against one who violates the statute or his valid regulations whether the violator holds a license from the state or not. The courts are open to the Commissioner at all times. He may prosecute for criminal violations, and may obtain injunction against other violations. The threat of lifting or cancellation of a license is not and should not be the only effective means of enforcing valid regulations.

The tempest raised by discovery of absence in the statute of any authority to the Commissioner to require a license from those who sell mixed drinks shall soon pass. He has asked authority to require the license from the only body having power to grant it — the General Assembly — and it has been granted, effective July 1, 1973. This declaration of the law as it was written prior to the Act of 1973 works no great harm or catastrophe. That demands may be made upon the Commissioner for refund of licenses heretofore required is of no consequence. See Code § 20-1007.

Argued June 1, 1973 Decided September 10, 1973 Rehearing denied October 5, 1973 Wesley Asinof, Ernest Brookins, for Mousetrap. Arthur K. Bolton, Attorney General, Richard L. Chambers, H. Perry Michael, Timothy J. Sweeney, Gary B. Andrews, Assistant Attorneys General, for Blackmon. Falligant, Doremus & Karsman, Stanley Karsman, Mitchell, Yancey & Fink, Robert L. Mitchell, for Exley.

Judgment reversed in No. 48272; affirmed in No. 48308.

Bell, C. J., Hall, P. J., Quillian, Evans and Clark, JJ., concur. Pannell, Deen and Stolz, JJ., dissent.

1 Although the license is patently not for revenue purposes only, whether it is the collection of a license fee or the levy or imposition of a tax, the statute is to be construed most strongly against the government and in favor of the citizen in determining whether its imposition is authorized. The scope of the statute in this respect is not to be extended by implication. McIntyre v. Harrison, 172 Ga. 65, 74 (157 SE 499); Case-Fowler Lumber Co. v. Winslett, 168 Ga. 808 (149 SE 211); Standard Oil Co. v. Swanson, 121 Ga. 412 (49 SE 262). The rule is different, of course, where the taxpayer seeks to come within an exemption from the tax. Oxford v. J. D. Jewell, Inc., 215 Ga. 616, 619 (112 SE2d 601).

2 The Commissioner has now been granted this authority by Ga. L. 1973, p. 12, which amended Section 9 of the Act as follows: "Anything in this Act to the contrary notwithstanding, the State Revenue Commissioner, shall require a State license, under rules and regulations promulgated by him, for the sale of distilled spirits or alcoholic beverages, for consumption on the premises.” This amendment is effective July 1,1973, and does not affect the instant proceedings.