McKesson & Robbins, Inc. v. Collins

THE COURT.

Plaintiff sought to enjoin the state board of equalization, its officers and employees, from exercising those powers conferred upon said board by section 51 of the State Alcoholic Beverage Control Act (Stats. 1935, p. 1123) relating to the seizure and summary destruction or sale of distilled spirits unlawfully possessed or upon which the excise tax imposed by said act has not been paid. The trial court sustained defendant’s demurrer to the complaint without leave to amend, and following the entry of judgment in defendants’ favor plaintiff appeals.

The complaint alleged that plaintiff is a wholesaler, exporter and importer of distilled spirits, duly licensed to do business as such by said board; that on or about March 6, 1936, at Mare Island, a military reservation under the exclusive jurisdiction of the United States, and located within the boundaries of the state of California, plaintiff sold thirty gallons of distilled spirits “to a retail liquor dealer who purchased said distilled spirits for resale to consumer buyers on said military reservation”; that thereafter plaintiff at its place of business in the city and county of San Francisco prepared said distilled spirits for delivery to said purchaser, marked the same with the purchaser’s name, and that the same are “now in the premises of the plaintiff in the city and county of San Francisco”. Continuing, the complaint

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alleged that “there is no provision in the Alcoholic Beverage Control Act of 1935 which imposes on distilled spirits sold on the military reservation an. excise tax; but that the defendants, nevertheless, have demanded of plaintiff that plaintiff pay a tax of eighty cents (80e) per gallon on the said thirty (30) gallons of distilled spirits sold as above set forth”, and threaten to seize said distilled spirits if an attempt is made to remove the same from plaintiff’s premises without the payment of said tax. Plaintiff asked, therefore, that defendants be permanently restrained from carrying out such threats.

Under the present laV of this state, all sales of distilled spirits not made in conformity with the provisions of said Alcoholic Beverage Control Act are illegal; and in our opinion the trial court was justified in holding in the present case that the sales transaction alleged in the complaint constituted an illegal sale in that plaintiff was not authorized to make the same under the licenses issued to it by said board; and that such being the case equity could not be invoked to aid plaintiff in consummating an unlawful act.