People v. Tux Winery Co.

CRAIL, P. J.

This is an appeal from a judgment after an order sustaining a general demurrer to plaintiff’s complaint without leave to amend. In the complaint the plaintiff sued the defendant for certain excise taxes alleged to have been due on sales of distilled spirits, made by wholesalers to wholesalers, but not to retailers.

The sole question necessa^ for the determination of the appeal is this: Is the excise tax on distilled spirits under the Alcoholic Beverage Control Act (Stats. 1935, p. 1123) collectible on sales of distilled spirits at a time prior to a sale to a retailer? If the tax is collectible prior to a sale to a retailer the judgment should be reversed; if not, it should be affirmed. It is not contended that more than one excise tax is collectible upon the same liquor.

The decision calls for a construction of sections 24, 29 and 33 of said act, and the parts of said sections necessary for ready information are as follows:

“Sec. 24. An excise tax is hereby imposed upon all distilled spirits sold in this State on and after July 1,1935, . . . ”

[702]

“See. 29. No excise tax shall be imposed by this act in any transaction whereby any alcoholic beverages are sold and delivered by a manufacturer or importer to another manufacturer or importer holding a valid manufacturer’s or importer’s license.”

“Sec. 33. The tax imposed by section 24 of this act upon the sale of distilled spirits shall be collected by means of attaching to each package containing such distilled spirits a stamp or stamps of a denomination equivalent to the amount of excise tax imposed upon the sale of the contents of such package. Such stamps shall be attached by the holders of on- or off-sale distilled spirits licenses issued under this act and by the holders of on-sale licenses for liquor other than beer and wine issued under the State Liquor Control Act [in this opinion called retailers], immediately upon opening the original eases in which the distilled spirits were packed and in which such distilled spirits were purchased from the manufacturer, rectifier, importer or wholesaler [in this opinion called wholesalers]. In the case of distilled spirits not in original cases at the time of purchase the stamps shall be attached immediately upon bringing such distilled spirits upon the premises for which such on- or off-sale licenses are issued.