Respectfully I must dissent to the syllabus rule of law. That rule is too broad to be justifiable. It is not applicable to the exact issue before us, nor necessary to the decision of this case as I view it. The term "silent partner" is quite difficult of exact definition. It might include many situations where one had some share of profits under circumstances wholly without objectionable feature, wholly legitimate, and free from any taint of violation of public policy. For as long as we continue to recognize 3.2 beer as a nonintoxicating beverage, its sale is as legal as any other nonintoxicating beverage, or as legal as any other item of commerce, and generally the state has no interest purely in the division of profits from the sale of legitimate commodities consumed by the buying public.
This is not to say, however, that the trial court judgment does not merit affirmance which could more closely follow the determination below.
As I read the record, the chief contention in the trial court, if not the sole contention there, was that this contract, if it existed at all, was void and against public policy because of the specific official position of the plaintiff. As an officer or employee of the State Tax Commission, with supervisory authority and regulatory control over wholesale and retail of 3.2 beer, it was urged as against public policy to permit such a person to stand or insist on, or even suggest, a partnership under which he could get beer from the wholesalers or brewers and himself sell it by subterfuge through another man as the holder of a license from the Tax Commission.
It seems quite apparent to me, from the record, that the trial court, upon these contentions, and for these reasons, held the asserted contract to be against public policy, if the contract did exist. There is nothing to indicate the trial court would have so held but for the specific employment or official position of plaintiff.
I would affirm the trial court judgment, but upon the same ground as there, and without pronouncing the general rule of the majority syllabus which might well be construed to embrace many instances of wholly legitimate sharing of profits from licensed sale of nonintoxicating 3.2 beverages.
The last Legislature found occasion to specifically prohibit beer whole-salers, brewers or importers from any kind of partnership with retail dealers, or from owning an interest in the premises of such a retailer, or extending credit to the retailer, etc., S.B. 235, S.L. 1947, 37 Okla. Stat. Anno. 231, and if the Legislature had seen fit, it might likewise have prohibited any other person from any character of silent partnership, *Page 360 with like provision for future effective date of the provision, so that persons in such an association might withdraw therefrom before the prescribed date. But no such provision was then made as to the general public. I do not think it wholesome that such a rule, with all its intendments or possibilities, should be established by this decision, beyond the exact contentions of the parties, and given present, if not retroactive, effect according to the exact wording of the syllabus rule.
I think it would be better if we leave the making of this rule to the Legislature which could put the desired definition on the character of silent partnerships desired to be prohibited.
Since I think the trial court was correct under the special circumstances here shown, I concur in the result of affirmance though dissenting from the syllabus rule taken by the majority as the controlling reason for affirmance.
If that syllabus is or should be the rule, I find it no reason for, nor guidance to, an affirmance of the trial court judgment that this agreement asserted by the plaintiff in the employment or position he occupied was against public policy because of his occupation.
I am authorized to say Mr. Justice GIBSON concurs in these views.