Bowles v. Texas Liquor Control Board, 273.

• Decision Date: 24 February 1945
• Docket Number: No. 273.,273.
• Citation: 59 F. Supp. 681
• Parties: BOWLES, Administrator, Office of Price Administration, v. TEXAS LIQUOR CONTROL BOARD et al.
• Court: U.S. District Court — Western District of Texas

59 F. Supp. 681

BOWLES, Administrator, Office of Price Administration, v. TEXAS LIQUOR CONTROL BOARD et al.

No. 273.

District Court, W. D. Texas, Austin Division.

February 24, 1945.

William P. Dobbins, of San Antonio, Tex., David B. Love, of Dallas, Tex., and W. W. Palmer, of San Antonio, Tex., for plaintiff.

Grover Sellers, Atty. Gen., and Elbert Hooper, Asst. Atty. Gen., for defendants.

HANNAY, District Judge.

In this case the Administrator of the Office of Price Administration instituted suit against the Texas Liquor Control Board, seeking by injunction to restrain the Liquor Control Board of the State of Texas from selling, or offering for sale, some 1,200 cases of alcoholic beverages belonging to the State of Texas.

This is, in effect, the second trial of this case. Heretofore, as set forth in detail in Brown v. Texas Liquor Control Board, D.C., 54 F.Supp. page 350, this District Court, acting through Judge Keeling, refused to grant such an injunction, assigning as his two main reasons for such refusal, first, that because Texas, not being one of those states that has a proprietary interest in the alcoholic beverage business, the regulations, as written, did not apply in this case. The second reason was that the sale by judicial order was, in effect, a judicial sale, to which the regulations as they were written did not apply.

It is admitted that the Texas law provides that such sales as are hereby attempted to be enjoined must be made at public or private sale in such manner as may be deemed best; provided the Board shall exercise diligent effort to obtain the best available price, and that the proceeds of such sale are to go into the State Treasury. Texas Liquor Control Act as amended in 1943; Vernon's Texas Annotated Penal Code, Title 11, Arts. 666—30, 666— 42.

The United States Circuit Court, Fifth Circuit, on 146 F.2d 155, 157, speaking through Circuit Judge Sibley, affirmed the judgment of the District Court, and in so doing, held that the sale was in the nature of a judicial sale, and that "Texas is not one of the States that regularly sells liquors as a State monopoly. Its sales are casual and occasional, and always preceded by judicial action. Nor is it really likely that maximum prices will be exceeded, because under the law only licensed liquor dealers may bid, and as they buy for resale under the price controls they cannot afford to bid excess prices. The Administrator can refuse to give them `mark ups' for a resale price if th...