Opinion
16440
December 5, 1950.
Messrs. John M. Daniel, Attorney General, and Claude K. Wingate, Assistant Attorney General, of Columbia, for Appellant. Messrs. R.O. Purdy and Edward V. Atkinson, of Sumter, for Respondent, cite: As to the proper construction of Section 2, Act No. 748, Acts of 1942: 114 A.L.R. 121, 123; 103 N.C. 413, 9 S.E. 582.
December 5, 1950.
Respondent is a licensed beer dealer in Sumter. After a hearing the Tax Commission undertook to suspend the license for a period of one week upon the charge that respondent had sold beer to an intoxicated person, invoking the following quoted ban contained in Act. No. 748 of 1942, 42 Stat. 1739:
"Section 2: No holder of a permit authorizing the sale of beer or wine, or any servant, agent or employee of the permittee, shall knowingly do any of the following upon the licensed premises covered by said holder's permit:
* * *
"(2) Sell beer or wine to any person while such person is in an intoxicated condition."
Section 3 of the Act authorizes appeal by the licensee to the Court of Common Pleas of the county of his residence where trial shall be de novo. Respondent followed the prescribed procedure and testimony was taken in the court but none of it is contained in the appeal record.
The trial court sustained the appeal and reversed the revocation of license upon a construction of the statute which is challenged by the Commission in the present appeal. However, the latter will have to be overruled and the order affirmed because of the absence from the record of a finding that the person to whom respondent made the questioned sale was in fact intoxicated or any evidence thereabout. The nearest approach is the statement in the order that intoxication was alleged. This is manifestly insufficient. It is therefore unnecessary to decide the question which has been argued.
Affirmed.