SCOTT v. THE STATE

Supreme Court of Georgia1939-02-18No. No. 12645

187 Ga. 702

Summary · law.co

Holding. The superior court properly overruled Scott's demurrer to the accusation. The revenue tax act sections imposing excise taxes on distilled spirits and making untaxed liquor contraband do not violate the state constitution's uniformity clause (because the ad valorem requirement was removed by amendment), do not breach the five-mill property tax limit (because excise taxes are not property taxes), and do not violate the federal Commerce Clause (because the Twenty-First Amendment reserves state authority over alcohol importation). The judgment was affirmed.

Scott was convicted of possessing unstamped whiskey in violation of Georgia's revenue tax act, which imposed excise taxes on distilled spirits and made it illegal to possess liquor lacking tax stamps. Scott challenged the statute's constitutionality through a demurrer, but the trial court rejected his arguments and the superior court upheld that rejection on certiorari review.

Scott raised three main constitutional objections. First, he argued the tax violated the state constitution's uniformity requirement because it was not an ad valorem tax. The court rejected this claim, noting that Georgia's constitution had been amended in 1937 to remove the ad valorem requirement before this statute was enacted, making non-ad valorem taxes permissible. Second, Scott contended the tax exceeded constitutional limitations on property taxation. The court disagreed, holding that the statute imposed an excise tax rather than a property tax, and the five-mill property tax cap therefore did not apply. Third, Scott claimed the law violated the federal Commerce Clause by restricting his ability to purchase spirits out of state. The court found this argument baseless, emphasizing that the Twenty-First Amendment explicitly grants states authority to regulate alcohol importation without Commerce Clause limitations.

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Key issues

Whether a non-ad valorem excise tax on distilled spirits complies with state constitutional uniformity requirements
Whether an excise tax on liquor is subject to the constitutional five-mill limitation on property taxation
Whether state regulation of alcohol importation is constrained by the federal Commerce Clause

Procedural posture

Scott was convicted in Fulton County criminal court; he obtained certiorari in the superior court challenging the trial court's rejection of his general demurrer to the accusation, and the superior court affirmed the trial court's ruling.

Authorities cited

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Opinion · public domain

majority opinion

Duckworth, Justice.

The defendant was convicted in the criminal court of Fulton County of possessing unstamped whisky. The superior court of Fulton County overruled his certiorari, and he excepted. The only question for decision is whether the trial court erred in overruling the defendant’s general demurrer to the accusation, which demurrer attacked the constitutionality of sections 11 and 17 of the revenue tax act to legalize and control alcoholic beverages and liquors, imposing a tax of one dollar per gallon on all distilled spirits imported into the State and fifty cents per gallon on all distilled spirits manufactured within the State, making it a misdemeanor to possess liquor which does not bear tax stamps showing the payment of this tax, and declaring such untaxed liquor to be contraband. The grounds of the demurrer will be sufficiently stated in the following opinion.

Section 11 of the revenue tax act is in part as follows: “There shall be levied and collected on all distilled spirits imported into the State of Georgia a tax of one dollar ($1.00) per wine gallon, and on all alcohol imported into the State of Georgia a tax of two dollars ($2.00) per wine gallon, and a proportionate tax at like rates on all fractional parts of a gallon. There shall be levied and collected, on all distilled spirits manufactured in the State of Georgia from Georgia grown products, a tax of fifty cents (0.50) per wine gallon, and on all alcohol manufactured in the State of Georgia, not from Georgia grown products, a tax of one ($1.00) dollar per wine gallon, and a proportionate tax at like rates on all fractional parts of a gallon.” Ga. L. Ex. Sess. 1937-38, pp. 103, 115. It is contended that the tax levied by this section is unconstitutional because it is not ad valorem. Plaintiff in error in his demurrer quoted from art. 7, sec. 2, paragraph 1, of the constitution (Code, § 2-5001), as it read before the ratification of an amendment thereto on June 8, 1937. Ga. L. 1937, p. 39. The relevant portion of this constitutional provision now is, “All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax,” whereas before the amendment it was, “All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax.” It will be noted that the requirement of this section that taxes on property be ad valorem was stricken before the enactment of the statute under review. It follows that the tax levied under section 11 of the act does not violate art. 7, sec. 2, paragraph 1, of the constitution, for the reason assigned.

It is also contended that section 11 is unconstitutional because it violates art. 7, see. 1, paragraph 2, of the constitution of Georgia (Code, §’ 2-4902), in that the tax imposed by this section exceeds five mills on each dollar of the value of the property so taxed. There is no merit in this contention. The tax levied by the act is an excise tax, and is not a tax on “property” in the sense in which that word is used in the constitutional provision here invoked. “The constitutional restriction to five mills is applicable only to taxes upon property ad valorem.” Standard Oil Co. v. State Revenue Commission, 179 Ca. 371 (176 S. E. 1). See also in this connection City of Atlanta v. Georgia Milk Producers Confederation, 187 Ga. 117 (200 S. E. 712), and cit.

It is contended that sections 11, 11(c), and 17 of the act under review violate the commerce clause of the United States constitution, in that the effect of these provisions is to deny the petitioner the right to purchase distilled spirits outside the State for his own use. We do not deem it necessary to construe the sections under attack. It is sufficient to state that the commerce clause does not apply to the regulation by States of the importation of intoxicating liquor. Section 2 of the twenty-first amendment to the Federal constitution (Code, § 1-836), provides: “The transportation or importation into any State, Territory, or possessión of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Since the adoption of this amendment, “the right of a State to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause.” Indianapolis Brewing Co. v. Liquor Control Commission of Michigan, U. S. (decided January 3, 1939). See also State Board of Equalization v. Young’s Market Co., 299 U. S. 59 (57 Sup. Ct. 77, 81 L. ed. 38); Mahoney v. Joseph Triner Cor., 304 U. S. 401 (58 Sup. Ct. 952, 82 L. ed. 961); Finch & Co. v. McKittrick, U. S. (decided January 3, 1939).

4. The accusation was demurred to on the ground that the portions of the act under review were unconstitutional for other reasons, but the grounds of demurrer are too indefinite to require a decision thereon by this court. See Curtis v. Town of Helen, 171 Ga. 256 (2) (155 S. E. 202); Jordan v. State, 172 Ga. 857 (159 S. E. 235); Jollie v. Hughes, 184 Ga. 860 (193 S. E. 769). It follows that the superior court did not err in overruling the certiorari. Judgment affirmed.

All the Justices concur.