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MISSISSIPPI STATE TAX COMMISSION v. ELKS LODGE #553

JUNE 05, 1985

MISSISSIPPI STATE TAX COMMISSION
v.
ELKS LODGE #553



BEFORE ROY NOBLE LEE, HAWKINS AND SULLIVAN

HAWKINS, JUSTICE, FOR THE COURT:

This is an appeal by the Mississippi State Tax Commission (Commission) from an order of the Chancery Court quashing a subpoena duces tecum directed to the Chancery Clerk of Adams County, and revoking the alcoholic beverage permit of Elks Lodge #553 in Natchez.

We find the Chancery Court of Adams County was without authority to take original jurisdiction, and reinstate the subpoena.

 In 1966 the Legislature enacted the "local option alcoholic beverage control law." See: Chapter 540, Laws 1968, Miss. Code Ann. 67-1-1.

 The administration and enforcement under the laws of this act were vested in the Commission. See: Miss. Code Ann. 67-1-19, making agents peace officers with power to arrest as well make searches and seizures. See: Miss. Code Ann. 67-1-31.

 The Commission is authorized to issue, as well as to revoke or suspend, permits to sell all alcoholic beverages; promulgate rules and regulations; and to inspect premises where alcoholic liquors are sold or distributed. It is likewise authorized to issue subpoenas requiring the attendance of witnesses and production of books and records. See: Miss. Code Ann. 67-1-37.

 Under the act if any holder of a permit conducts any form of gambling on the premises, or knowingly has any gambling device, the Commission must either revoke

 or suspend its license. See: Miss. Code Ann. 67-1-71(i).

 If a holder desires to appeal from any order of the Commission, it is to the Chancery Court of the domicile of the appellant, but without supersedeas. See: Miss. Code Ann. 67-1-39.

 Finally, the act authorizes the Commission to apply to any court of competent jurisdiction for injunctive relief, and requires all law enforcement officers and agencies to cooperate with the Commission and its agents. See: Miss. Code Ann. 67-1-89 and 67-1-91.

 In making a routine inspection of the Elks Lodge, holder of a liquor permit, on April 25, 1984, agents of the Commission found four slot machines with $160.85 in coins therein. They seized the machines and arrested the manager, Thomas E. Connelly. Connelly was charged criminally with the unlawful possession of slot machines in violation of Miss. Code Ann. 97-33-7, which makes it a crime to possess gambling devices, including slot machines, and also requires the destruction of the machines.

 On May 1, 1984, a Justice Court of Adams County found Connelly not guilty and discharged him. The Justice Court Judge also ordered the slot machines transferred to the Chancery Clerk of Adams County for further disposition, and to deliver all monies in the machines to the Chancery Clerk. Finally, to cover all bases in rendering this matter res judicata a la Justice Court, Adams County, this august magistrate found as a fact there was a total insufficiency of any evidence of any kind of gambling activities on or about Elks Lodge.

 The Justice Court thereupon forwarded the slot machines to the Chancery Clerk. The Commission agents honored this order by paying the $160.85 to the Chancery Clerk.

 On June 8, 1984, the Commission issued a subpoena duces tecum to the Chancery Clerk requiring the Clerk to surrender the slot machines and the money to the Alcoholic Beverage Control for ...


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