Lewis v. Gaddy

Bussey, Justice.

This is a proceeding instituted by the appellants as members of and constituting the South Carolina Alcoholic Beverage Control Commission, who, for simplicity, will hereinafter be referred to simply as the Commission. The respondent is the proprietress of a restaurant and bar known as “Gaddy’s Owl Club”, located at Myrtle Beach, South Carolina, and, in connection with such business there was issued to her by the Commission not only a beer and wine permit, but a permit for the possession and consumption of alcoholic liquors, pursuant to the respective applicable statutes.

On January 26, 1969, the husband of respondent, who was also her employee, was in charge of the place of business. He had parked upon an adjacent parking lot a Volkswagen which was locked. At the request of agents of the Commission, he opened the Volkswagen and allowed a search of the interior, which produced some twenty odd half pints of legal alcoholic liquors. Based thereupon this proceeding was instituted and, following a hearing, the Commission, on May 26, 1969, issued an order suspending respondent’s permits for the remainder of the year, but allowing her to pay in lieu of such suspension a monetary penalty in the amount of $700.00. She paid the monetary penalty under protest and appealed to the Court of Common Pleas for Horry County.

That court reversed the findings of the Commission and held that respondent’s employee was in lawful possession of the alcoholic liquors and that the Commission had therefore wrongfully penalized the respondent.

Although counsel for the parties state and argue two questions, the appeal, to our mind, presents only a single *69question which, simply stated, is: Was the possession of the alcoholic liquors by the husband of respondent illegal? There was no charge or finding of fact to the- effect that the possession was for an unlawful purpose, the only finding of fact by the Commission being the following:

“The Commission did find that one of your employees, on January 26, 1969, did illegally possess legal liquor on your licensed premises in that your employee did illegally-possess legal liquor in his motor vehicle which was parked on your licensed premises on said date.”

Respondent apparently concedes that if such possession was, in fact, illegal, she is subject to the penalty imposed. The Commission contends that the possession was illegal by virtue of the provisions of Sec. 4-95 of the 1962 Code of Laws, which Code section the lower court held was not here applicable or controlling.

Sec. 4-95, which has been a part of the statute law of this state since 1945, provides as follows:

“It shall be unlawful for any person to store or have in his possession any alcoholic liquors in his place of business other than a licensed liquor store.”

Under prior decisions of this court construing this Code section, there is no doubt that the parking lot in the instant case was a part of the place of business of the respondent. Accordingly, it is clear that the possession here prior to the year 1967 would have been illegal, but in that year there was enacted by the General Assembly what has become commonly known as our unique “brown bagging law”, Act No. 398 of the Acts of 1967, Section 10 of the said Act having been subsequently codified as Sec. 4-29 in the supplement to the 1962 Code of Laws. That section specifically made it lawful for any person to possess or consume alcoholic liquors on the premises of a business establishment such as that of the respondent, provided such business establishment has a possession and consumption permit issued by the Commission pursuant to statute. The respondent here *70had such a permit. We quote the following pertinent and controlling provisions of Section 10 of the 1967 Act, now Code Section 4-29.

“A. Notwithstanding any other provisions of law, it shall be lawful, subject to the provisions of subsection ‘B’ of this section, for any person who is at least twenty-one years of age to transport, possess or consume lawfully-acquired alcoholic liquor in accordance with the following: (subsection B is not here pertinent)
“(1) Any person may transport alcoholic liquors to and from any place where alcoholic liquors may be lawfully possessed or consumed * * *.
“(4) It shall be lawful for any person to possess or consume alcoholic liquors on the premises of cmy business establishment, except on Sunday, provided the business establishment meets the following requirements:
“(a) The business is bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging; and
“(b) The business has a permit from the Alcoholic Beverage Control Commission for this purpose * * (Emphasis added.)

The 1967 Act specifically repealed several Code sections but made no mention of Code Sec. 4-95. It is, of course, well settled that repeal by implication is not favored, and a law should not be construed as impliedly repealing a prior law unless no other reasonable construction can be applied. See cases collected in West’s South Carolina Digest, Statutes, Key No. 157.

Statutes in pari materia, such as Code Sections 4-95 and 4-29, have to be construed together and reconciled, if possible, so as to render both operative. See cases collected in West’s South Carolina Digest, Statutes, Key No. 223.2. Statutes which are criminal or penal in nature are strictly construed against the state. See cases *71collected in West’s South Carolina Digest, Statutes, Key No. 241. All rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose. See cases collected in West’s South Carolina Digest, Statutes, Key No. 181.

In accordance with the last mentioned rule of construction, if the legislative intent is expressed in clear and unambiguous language, there is no room for construction and no need for resort to the other rules of construction above mentioned. In the present case we think there is no need for resort to such rules of construction, but if resorted to, they reinforce the conclusion which we reach.

It is obvious, we think, from the plain and clear language of Sec. 4-29 that it was the legislative intent and purpose to allow both the possession and consumption of alcoholic liquors upon the premises of a business establishment meeting the requirements of that particular section, notwithstanding the provisions of Code Sec. 4-95. Section 4-95 remains in full force and effect as to places of business not within the purview of Section 4-29, but was by Section 4-29 clearly modified so as to remove and exempt from the application of Sec. 4-95 the place of business here involved. Section 4-29 commences with the language, “Notwithstanding any other provision of law, it shall be lawful, etc.”

The Commission contends, inter alia, that the words “any person”, appearing repeatedly in Code Sec. 4-29, did not refer to and include the employer or employees of a business establishment holding a possession and consumption permit. Suffice it to say that had the General Assembly seen fit when it enacted Sec. 4-29 to prohibit possession, consumption and transportation by the proprietor or the employees of an establishment holding a possession and consumption permit, it could easily have done so. Instead, it *72repeatedly used the phrase “any person”, excluding only persons under twenty-one years of age.

The Commission argues that the parking lot here was a part of the premises of the business establishment for the purpose of Code Sec. 4-95, but that, under Regulation 16 of the Commission, the parking lot was not a part of the “premises” of a business establishment holding a possession and consumption permit and that hence Sec. 4-95 is applicable and controlling. We refrain from here passing upon the validity or effect of said regulation, as such is unnecessary to a disposition of the appeal.

For the purposes of the instant case, it makes no difference whether the parking lot was or was not a part of the premises of the business establishment. If it was a part of the premises, it follows that the possession was expressly permitted and lawful. If the parking lot was not a part of the premises, Sec. 4-29 specifically makes it lawful for any person to transport alcoholic liquors to and from any place where alcoholic liquors may be lawfully possessed or consumed. Persons cannot possibly transport alcoholic liquors to and from an establishment holding a possession and consumption permit without being in possession of such in an area immediately adjacent to such business establishment. It follows that mere possession of alcoholic liquors, in such an area, of necessity is expressly permitted by statute and is, therefore, not illegal.

■ For the foregoing reasons we conclude that the appeal is without merit and the judgment of the lower court is, accordingly,

Affirmed.

Moss, C. J., and Lewis and Brailsford, JJ., concur. Littlejohn, J., dissents.