National Food Stores v. North Carolina Board of Alcoholic Control

Annotate this Case

151 S.E.2d 582 (1966)

268 N.C. 624

NATIONAL FOOD STORES, t/a Big Bear Super Market, Petitioner, v. NORTH CAROLINA BOARD OF ALCOHOLIC CONTROL, Respondent.

No. 538.

Supreme Court of North Carolina.

December 14, 1966.

*584 Atty. Gen. T. W. Bruton and Asst. Atty. Gen., George A. Goodwyn, for respondent appellant.

Purrington, Joslin, Culbertson & Sedberry by Charles H. Sedberry, Raleigh, for petitioner appellee.

*585 PARKER, Chief Justice.

There is not a scintilla of evidence in the record before us that petitioner "did fail to give their retail licensed premises proper supervision on February 2, 1966, by allowing the sale of beer to a minor in violation of G.S. 18-78," as concluded by the hearing officer, and as approved by respondent in its order. Surely, a sale of beer on one occasion to a minor under the circumstances here is not a failure to give the licensed premises proper supervision.

We have two statutes prohibiting the sale of beer to a minor under 18 years of age.

G.S. § 18-90.1 provides in relevant part: "It shall be unlawful for: (1) Any person, firm or corporation to sell or give any of the products described in G.S. 18-64 and G.S. 18-60 to any minor under eighteen (18) years of age." Pabst Blue Ribbon beer is included in the description in G.S. § 18-64. G.S. § 18-90.1 as quoted above was enacted in the 1933 Session of the General Assembly in substantially the same words as quoted above. Public Laws of North Carolina, Session 1933, Ch. 216, Section 8, was codified as Section 3411(kk) in the 1933 supplement to the North Carolina Code of 1931; codified as the same section in the North Carolina Code of 1935; and codified in substantially the same language as G.S. § 18-90.1, General Statutes of North Carolina 1959. The 1959 Session of the General Assembly rewrote G.S. § 18-90.1 in the form it now appears in G.S. § 18-90.1, which is substantially as it was written by the 1933 General Assembly, and added Section (2) which appears in G.S. § 18-90.1 which makes it unlawful for any minor under 18 years of age to purchase any of the products described in G.S. § 18-64 and G.S. § 18-60.

G.S. § 18-78.1 reads in relevant part as follows: "No holder of a license authorizing the sale at retail of beverages, as defined in § 18-64, and article 5, for consumption on or off the premises where sold, or any servant, agent, or employee of the licensee, shall do any of the following upon the licensed premises: (1) Knowingly sell such beverages to any person under eighteen (18) years of age. * * *" Section (1) quoted above was enacted by the General Assembly in 1943 in substantially the same language as it is codified in G.S. § 18-78.1(1). 1943 Session Laws of North Carolina, Ch. 400, Section 6. The statute enacted by the General Assembly in the 1943 Session was amended by the General Assembly in the 1945 Session, the 1949 Session, the 1959 Session, and the 1963 Session (as appears at the end of the statute codified as G.S. § 18-78.1), but none of these amendments are relevant here.

G.S. § 18-90.1(1) is a general statute which makes it unlawful for any person, firm or corporation to sell or give beer to any minor under 18 years of age. The words knowingly sell have never appeared in this statute since its original enactment in 1933. G.S. § 18-78.1(1) is a special statute which prohibits the holder of a license authorizing the sale of beer for consumption on or off the premises where sold, or any servant, or agent or employee of the licensee, to knowingly sell beer to any person under 18 years of age. The words knowingly sell beer to any minor under 18 years of age have been in this statute from the date of its original enactment in the 1943 General Assembly until the present day. It would seem reasonable to assume that any holder of a license authorizing the sale at retail of beer and wine, and who is engaged in such business selling beer and wine by its employees, particularly in a large supermarket, runs a greater risk of selling beer or wine at retail by inadvertence or mistake to a minor under the age of 18 years than a person or corporation not coming within the specific provisions of G.S. § 18-78.1, and that is the reason the General Assembly placed in G.S. § 18-78.1 (1) the words knowingly sell. The relevant part of G.S. § 18-78.1(1) was enacted ten years after the relevant part of G.S. § 18-90.1(1).

*586 This is said in 82 C.J.S. Statutes § 369, pp. 839-843:

"Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but, to the extent of any necessary repugnancy between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute, according to the authorities on the question, unless it appears that the legislature intended to make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage."

It seems clear that the General Assembly did not intend to make the general act, to wit, G.S. § 18-90.1(1), controlling in all cases of selling beer or wine to a minor under 18 years of age, "and this is true a fortiori when the special act," G.S. § 18-78.1(1), was ten years later in point of time. It is our opinion that reading G.S. § 18-90.1 (1) and G.S. § 18-78.1(1) together they can be harmonized with a view to giving effect to a consistent legislative policy by holding, as we do, that the specific provisions of G. S. § 18-78.1(1) prevail over the general provisions of G.S. § 18-90.1(1), in providing that "[n]o holder of a license authorizing the sale at retail of beverages, as defined in § 18-64, and article 5, for consumption on or off the premises where sold, or any servant, agent, or employee of the licensee, shall * * * [k]nowingly sell such beverages to any person under eighteen (18) years of age," (Emphasis ours.) and that in all other cases not included in the specific provisions of G.S. § 18-78.1(1), the general provisions of G.S. § 18-90.1(1) make unlawful the mere selling or giving of any of the products described in G.S. § 18-64 and G.S. § 18-60 to any minor under 18 years of age.

The Attorney General in his brief contends that the North Carolina Board of Alcoholic Control in its letter to petitioner charged a violation of G.S. § 18-90.1(1), not G.S. § 18-78.1(1); that the hearing officer found a violation by petitioner of G.S. § 18-90.1(1), which was approved by respondent; and that G.S. § 18-90.1(1) does not require "that knowledge be proven." He states in his brief: "Moreover, under G.S. 18-78(d), the Board of Alcoholic Control, among other powers, possesses the power to `* * * revoke or suspend the State permit of any licensee for a violation of the provisions of this article or of any rule or regulation adopted by the said Board * * *' G.S. 18-90.1 is within the same article as G.S. 18-78, to wit, Article 4." The fact that respondent charged a violation of the wrong statute, that the hearing officer found a violation of the wrong statute, which was approved by respondent, does not support respondent's order suspending petitioner's retail beer and wine permits for a period of 45 days.

There is no evidence in the record before us that petitioner knowingly sold beer to William Aycock, a minor under 18 years of age. The Attorney General states in his brief: "At the threshold, the appellant will admit that there was no finding by either the Hearing Officer or the Board, that the petitioner, through his employee, knowingly sold beer to the minor, William Aycock, age 17. What the Board did find was the permittee, through his agent, allowed the sale of beer to a minor (under eighteen years of age) on the licensed premises." The judgment of the court below overruling respondent's assignments of error, vacating the order entered by respondent suspending petitioner's retail beer and wine permits for 45 days, and taxing respondent with the cost, was correct, and is affirmed.

*587 The respondent in its brief relies upon Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864. That case is not in point. Petitioner had a retail beer permit and had a drive-in curb service. A curb boy employee of petitioner sold an ABC investigator a half gallon jar of non-taxpaid whisky and arranged to sell him a case of whisky, and after closing hours another curb boy sold the same investigator a can of beer, which he drank on the premises. It did not involve the sale of any intoxicants to a minor under 18 years of age. The respondent relies upon Campbell v. North Carolina State Board of Alcoholic Control, 263 N.C. 224, 139 S.E.2d 197. That case insofar as it conflicts with this case is overruled.

Affirmed.