Ammex Warehouse Co. v. Archer, A-10117

• Decision Date: 29 July 1964
• Docket Number: No. A-10117,A-10117
• Citation: 381 S.W.2d 478
• Parties: AMMEX WAREHOUSE COMPANY, Inc., et al., Petitioners, v. Hon. Roy C. ARCHER, Chief Justice of the Austin Court of Civil Appeals, et al., Respondents.
• Court: Texas Supreme Court

Page 478

381 S.W.2d 478

AMMEX WAREHOUSE COMPANY, Inc., et al., Petitioners, v. Hon. Roy C. ARCHER, Chief Justice of the Austin Court of Civil Appeals, et al., Respondents.

No. A-10117.

Supreme Court of Texas.

July 29, 1964.

R. Dean Moorhead, Austin, O. C. Hamilton, Jr., McAllen, for relator.

Waggoner Carr, Atty. Gen., Austin, Howard M. Fender and Brady S. Coleman, Asst. Attys. Gen., for respondents.

NORVELL, Justice.

Ammex Warehouse Company and six allied business establishments seek an original writ or writs of mandamus against the Justices of the Court of Civil Appeals in and for the Third Supreme Judicial District of Texas and the Texas Liquor Control Board and its Administrator, Hon. Coke R. Stevenson, Jr.

History of Litigation

Relators sell whiskey and other liquors under a scheme or plan which they contend is exempt from state regulation because of Acts of Congress passed under the commerce clause of the United States Constitution. Their establishments are located near the Mexican border and they claim that their operations are in essence the same as those carried on by Idlewild Bon Voyage Liquor Corporation which were recently considered by the Supreme Court of the United States in Hostetter v. Idlewild Bon Voyage Liquor Corporation, 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). The Administrator of the Texas Liquor Control Board asserts that the operations of relators were and are being conducted within the territorial boundaries of Texas and are subject to state control and regulation.

The District Court consolidated a number of cases in which the relators were plaintiffs and the Texas Liquor Control Board and its Administrator were defendants under Cause No. 132,400 on the docket of said Court. On March 6, 1964, the Court rendered two orders; one being a decree permanently enjoining the Texas Liquor Control Board and its Administrator from enforcing or attempting to enforce the state regulatory liquor laws as against the defendants and their operations; the second was styled, 'Order modifying and extending temporary injunction.' It is accurately stated by the Court of Civil Appeals in the prohibition proceedings hereinafter mentioned that it appears without dispute that:

'Comparison of the final judgment with the so-called order modifying and extending temporary injunction reveals that the restraining provisions are substantially identical in each instrument, the major difference being that by the final judgment Defendants are 'permanently enjoined,' while the * * * extension of the temporarv injunction purports to restrain and enjoin Defendants 'pending final determination of this consolidated cause on the merits by the highest appellate court to which the judgment on the merits may be appealed by any of the parties." Texas Liquor Control Board v. Jones, District Judge, Tex.Civ.App., 378 S.W.2d 898, l.c. 900, original proceeding (1964).

The temporary order also expressly provided that:

'This order shall not merge with any injunctive relief which might be granted by the Court in the judgment which will hereinafter be entered upon the merits of this cause, but shall at all times, until final determination of this case by the Court of last resort, remain separate and apart therefrom.'

As there seems to be a substantial federal question here involved, it is readily seen that the purpose of the temporary order was to prevent supersedeas and restrain enforcement of the state regulatory liquor laws until this litigation could make its way through the Court of Civil Appeals to this Court and ultimately to the Supreme Court of the United States.

The Court of Civil Appeals considered this temporary order to be an interference with its jurisdiction of the case which had been invoked by giving notice of appeal from the final judgment rendered in said consolidated Cause No. 132,400. Accordingly, upon application of the Administrator, it issued a writ of prohibition forbidding the enforcement of the temporary injunction or stay order issued by the District Court. Texas Liquor Control Board v. Jones, District Judge, supra. In so doing the Court relied primarily upon its prior decision rendered in Railroad Commission of Texas v. Roberts, Tex.Civ.App., 332 S.W.2d 745, original proceeding. (1960), wherein it was said that:

'(W)e are convinced that the effect of the temporary restraining order issued on February 8, 1960 was to deny to the Railroad Commission its rights accorded it by the statutes of this State to supersede the judgment of February 3rd and that such rights are the proper subject of protection by this Court as ancillary to the appeal from the final judgment of February 3, 1960, and that under Article 1823 which authorizes this Court to issue writs necessary to protect its jurisdiction that the writ of prohibition for which the relator prays should be awarded.'

This Court granted leave to file an application for writ of mandamus presented by relators and issued a temporary order staying all action on the part of the Texas Liquor Control Board and its Administrator until we could determine this cause. See, State ex rel. Yelkin v. Hand, 160 Tex. 414, 333 S.W.2d 108 (1960) and Hand v. State, 160 Tex. 415, 333 S.W.2d 109 (1960). The relief prayed for by way of mandamus in this Court would have the effect of rendering the temporary injunction or stay order of the District Court effective until this cause had been determined by the court of last resort which, as above pointed out, could well be the Supreme Court of the United States.

The Right of the State to Supersedeas

It is asserted by the relators that Article 279a ¹ and 2276 ² do not authorize the State to supersede a judgment of a trial court. It is said that to construe such articles as allowing a supersedeas by the State without giving a bond would render the statutes unconstitutional under the due process clauses of the state and federal constitutions. It is also pointed out that certain articles of the Revised Statutes relating to the right of a governmental entity or department to appeal without giving bond specifically mention 'supersedeas bonds' as well as cost bonds. See Article 1174 relating to cities and Article 2072a relating to the Banking Department.

Article 2276 reads as follows:

'Neither the State of Texas, nor any county in the State of Texas, nor the Railroad Commission of Texas, nor the head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case.

'Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.'

In Railroad Commission of Texas v. Roberts, supra, it was held that:

'The effect of notice of appeal by and on behalf of the Railroad Commission was to supersede the final judgment entered by the 126th District Court.'

In Inman v. Texas Land & Mortgage Company, Tex.Civ.App., 74 S.W.2d 124, no wr. hist. (1934) the Court stated that:

'Rev.St. Art. 2276, provides that a guardian appointed by the courts of this state shall not be required to give bond on any appeal or writ of error taken by him in his fiduciary capacity. It is further held that, when a guardian, as such, has appealed by giving the required notices and filing the record in the reviewing court, the appeal suspends the execution of the judgment or order appealed from without the necessity of filing a supersedeas bond. 21 Tex.Jur. 368, § 106, 370, § 107, and authorities cited.'

Similarly in Wallace v. Adams, Tex.Civ.App., 243 S.W. 572, wr. dis., 1922, it was said that:

'The state may appeal without bond, so may guardians and administrators; yet the judgments from which such appeals are prosecuted are automatically suspended without any specific statutory directions that such shall be the result.'

While these decisions by the Courts of Civil Appeals are not binding upon this Court, the holdings made by such Courts are in accord with the plain unequivocal wording of the statutes and the Rules of Civil Procedure relating to supersedeas. Rule 364 makes only one requirement as a prerequisite for a supersedeas and that is the filing of a bond. It is stated that, 'An appellant desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond. * * *'. The statute provides that the State shall not be required 'to give bond on any appeal or writ of error taken by it * * * in any civil case.'

We see nothing in this exemption statute which is repugnant to any constitutional provision. The Legislature could have provided that any judgment of a trial court should remain in effect until final disposition of the cause by an appellate court of last resort. It did not so provide, but on the contrary prescribed that a final judgment of a trial court could be suspended by supersedeas.

It is true that if the Texas law is enforced as to relators and it should thereafter be determined that the federal law had exclusive application, such relators could not recover damages or indemnity against the State. The State by the very nature of its political organization cannot give bond nor expend money without Legislative approbation, but this circumstance does not operate to deprive the State of the right of supersedeas. No one would seriously question the right of the State of Texas to regulate the manufacture and sale of intoxicants within its borders. Such regulations may at times entail hardship. Administrators may make mistakes, but hardships and mistakes are incidental to each and every law enforcement effort by human beings. The Legislature was well within its constitutional boundaries in providing that the State and the heads of its departments are exempt from giving bond when they elect to supersede a judgment of a trial court.

The Asserted...