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MOSE DANTZLER, SR. v. STATE OF MISSISSIPPI

APRIL 05, 1989

MOSE DANTZLER, SR.
v.
STATE OF MISSISSIPPI



EN BANC.

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Mose Dantzler, Sr. was convicted in the Justice Court, Lamar County, Mississippi, for possession of seventeen (17) cans of beer while en route to his home in Purvis, Mississippi. He was sentenced to ninety (90) days in jail and fined two hundred fifty dollars ($250.00) pursuant to Mississippi Code Annotated 67-3-13 (1972), as amended.

Dantzler appealed the conviction to the Circuit Court of Lamar County, which court denied his motion to dismiss and then granted a motion for an interlocutory appeal

 to this Court on the sole issue of whether or not the possession of such beer, legally purchased in the City of Hattiesburg, constituted a violation of the law while he was traveling home in the "dry" part of Lamar County. We consider the appeal and affirm the lower court.

 Lamar County is a "dry" county pursuant to elections under the Local Option Law held in 1937 and again in 1978. Possession of beer with an alcoholic content of not more than four percent (4%) by volume weight is legal in the City of Hattiesburg by virtue of an election held pursuant to Mississippi Code Annotated 67-3-9 (1972), as amended. The western portion of Hattiesburg, located in "dry" Lamar County, was annexed to the municipality subsequent to the elections held in Lamar County and Hattiesburg, which determined the "dry" or "wet" status. By virtue of the annexation, that part of Hattiesburg located in Lamar County became "wet." Dantzler purchased his beer there.

 The sole question before this Court is whether or not the possession of beer with an alcoholic content of not more than four percent (4%) by volume weight is legal in a county which has a municipality that allows the sale and possession of such beer and whether or not 67-3-13, as amended, is unconstitutional because it denies Dantzler equal protection under the laws and constitution of the State of Mississippi and the Constitution of the United States.

 Case Background

 Effective February 26, 1934, the legislature enacted House Bill 26, which provided in part the following:

 Section 1. Be it enacted by the Legislature of the State of Mississippi, That it shall hereafter, subject to the provisions hereinafter set forth, be lawful in this state to transport, store, sell, distribute, possess, receive and/or manufacture wine and beer of an alcoholic content of not more than four per centum by weight.

 Sec. 2. Provided, that if any county, at an election held for the purpose under the election laws of the state, shall by a majority vote of the duly qualified electors voting in the election determine that the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages, shall not be permitted in such county, then the same shall not be permitted therein. Provided, however, that nothing in this section

 shall prohibit the consumer from possessing or the taking into any county electing to come from under this section said wines and beers for his personal consumption. . . .

 Ch. 171, Miss. Gen. Laws 1934 at 392.

 The above statute made the possession of beer legal in the State of Mississippi, regardless of the Local Option Law prohibiting the transportation, storage, sale, distribution, receipt and/or manufacture of beer in the county.

 Subsequently, Chapter 224, Miss. Gen. Laws 1942, was enacted by the legislature, which was practically identical to the Laws of 1934, but provided that no election on the question of legality of beer in the county shall be held more often than once in five (5) years. The Laws of 1934 provided that no election on the question shall be held in any one county "oftener that once in two (2) years." The 1942 law, as did the 1934 law, contained the following: "provided, however, that nothing in this section shall prohibit the consumer from possessing or the taking into any county electing to come from under this section said wines and beers for his personal consumption."

 In Hoyle v. State, 216 Miss. 330, 62 So. 2d 380 (1953), Hoyle was convicted of the possession of thirty-one (31) quart bottles of beer in Itawamba County, which had voted to prohibit the transportation, storage, sale, distribution, etc. of beer in the county. In reversing Hoyle's conviction and discharging him, the Court considered Chapter 171, Miss. Gen. Laws of 1934, and Laws of 1942, and said:

 We come now to the proposition which we find controlling in this case, resulting in a sustaining of the demurrer to the indictment. The appellant is charged with the offense of unlawfully having "in his possession beer, for the unlawful purpose of sale" in a non-beer county. Is the "possession" of beer, not shown to be of an alcoholic content greater than four per centum by weight, in such county, a crime under our statutes? We think not.

 Prior to the enactment of Chapter 171, Laws of 1934, the wine and beer statute, the possession of and traffic in all intoxicating liquors was prohibited. Then the act of 1934 provided that it shall, subject to the local option provisions, "be lawful, in this state to transport, store, sell,

 distribute, possess, receive and/or manufacture wine and beer of an alcoholic content of not more than four per centum by weight." Sec. 10207, Code of 1942. Emphasis supplied. It is then provided in this statute that if any county holds an election for the purpose and determines that "the transportation, storage, sale, distribution, receipt, and/or manufacture of such beverages, shall not be permitted in such county, then the same shall not be permitted therein." Section 10208, Code of 1942. A proviso is added that "nothing in this section shall prohibit the consumer from possessing or the taking into any county electing to come from under this section said wines and beers for his personal consumption." It is noted that in three instances, after this proviso, the section enumerates the acts which may be forbidden, and each time the word "possession" is omitted.

 It is clear to us that the legislature, having legalized the "possession" of beer of an alcoholic content of not more than four per centum by weight, did not empower counties to forbid possession thereof when it authorized them to prohibit the transportation, storage, etc., without mentioning possession. Reference to Webster's New International Dictionary (Second Edition) shows the principal definition of "storage" as - "Act of storage, or state of being stored; specif., the safekeeping of goods in a warehouse or other depository." Obviously, "storage" and "possession" are not the same thing.

 216 Miss. at 333-34, 62 So. 2d at 382.

 After the Hoyle decision was rendered, the legislature enacted effective February 1, 1956, House Bill 153, Miss. Gen. Law 1956, which amended Section 10208, Mississippi Code of 1942, codified from the Laws of 1934 and 1942. House Bill 153 deleted the provision that nothing in those laws shall prohibit the consumer from possessing or taking into any county wines and beers for his personal consumption. The Laws of 1956 further provided:

 (b) In any county which under the provisions of subsection (a) hereof has elected to prohibit the transportation, storage, sale, distribution, receipt and/or manufacture of such beverages in such county, any person found possessing any beer or wine of any quantity whatsoever shall, on conviction, be

 imprisoned not more than ninety (90) days or fined not more than five hundred dollars ($500.00) or both such fine and imprisonment.

 After enactment of the Laws of 1956, Russell v. State, 231 Miss. 176, 94 So. 2d 916 (1957), was decided May 6, 1957, by this Court. Russell was convicted in the Circuit Court of Copiah County for the unlawful possession of beer in a county which, by local option, had theretofore ...


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