Cartlidge v. Rainey

• Decision Date: 07 August 1948
• Docket Number: No. 12374.,12374.
• Citation: 168 F.2d 841
• Parties: CARTLIDGE et al. v. RAINEY.
• Court: U.S. Court of Appeals — Fifth Circuit

168 F.2d 841 (1948)

CARTLIDGE et al. v. RAINEY.

No. 12374.

Circuit Court of Appeals, Fifth Circuit.

June 30, 1948.

Rehearing Denied August 7, 1948.

Price Daniel, Atty. Gen. of Tex., William S. Lott, Asst. Atty. Gen. of Tex., and Ned McDaniel, of Wichita Falls, Tex., for appellants.

Mike Anglin and Oscar B. Jones, both of Longview, Tex., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is from an order temporarily restraining the appellants from removing, damaging, or disposing of a Ford automobile, one case of Southern Comfort, two cases of gin, and sixteen cases of whiskey, which were seized on May 4, 1948, by the sheriff and one of his deputies on a public highway in Wood County, Texas. The car and liquor were enroute from Louisiana to Oklahoma. The driver of the car and his companions were arrested and placed in jail. Two of the occupants pleaded guilty in a state court to charges of violating the Texas Liquor Control Act,¹ and signed a waiver conveying the liquor to the Texas Liquor Control Board.

On May 6, 1948, the appellee filed this suit alleging that the car and the liquor belonged to him; that the liquor had been legally purchased in Louisiana; that he had employed one of the occupants of the car to transport the liquor in interstate commerce through Texas to Oklahoma; that the other occupant and his wife were merely passengers in the vehicle; that the arrest and seizure were without warrant, and without probable cause for either the arrest or seizure; that, at the time of seizure, the car and the whiskey were not being used, possessed, or transported in violation of any state or federal law; and that possession of the same was being illegally withheld from its lawful owner. Federal jurisdiction was predicated upon diversity of citizenship, the presence of federal questions, and the requisite jurisdictional amount.

The appellee further alleged that appellants had threatened to remove the liquor from Wood County, and to dispose of the same by virtue of the written waiver, and the pleas of guilty, all of which were wrongfully obtained by duress and other unlawful means; that he feared, and had good reason to believe, the appellants would abandon the seizure and dispose of the articles seized, thereby defeating the jurisdiction of both the state and federal courts, and depriving him of his property without due process of law, unless the court immediately restrained them from so doing.

The prayer of the complaint was that, upon final bearing, the property be restored to the appellee, and that appellants be enjoined from interference with the continuation of appellee's transportation of said liquor and automobile while enroute to Oklahoma.

On May 8, 1948, suit was instituted in the district court of Wood County, Texas, by the Texas Liquor Control Board, against the liquor, the automobile, the appellee, his employee, and one other occupant of the car, alleging the seizure of the car and the liquor, the possession of the liquor for the purpose of sale, and the transportation thereof in violation of the Texas Liquor Control Act, particularly in violation of Section 4(b) of Article 666 (Art. 666 — 4(b), Vernon's Penal Code) and Paragraph (12) of Section 17 of Article 666 (Art. 666 — 17 (12), Vernon's Tex. Penal Code) of that Act; that the liquor and automobile were subject to seizure, and forfeiture to the State of Texas, under the Act; that such suit was brought under the terms of said Act for the purpose of forfeiting the liquor and automobile so seized; and praying for judgment of forfeiture. Service of process was had the same day on Rainey, the appellee.

At the time of seizure the appellee's agent had in his possession, and exhibited to the officers for their inspection, a written statement of ownership of the liquor as required by Art. 666, Section 27, of the Texas Liquor Control Act, but he had no permit from the Texas Liquor Control Board to possess or transport said liquor within or through the state. The necessity for said permit is in dispute, but the question has been decided against the appellee's contention by the Court of Criminal Appeals of Texas in Fogle v. State, 133 Tex. Cr.R. 312, 111 S.W.2d 246. We are bound by that decision, which holds that evidence of ownership, as well as a permit to transport it, should accompany all transported liquor. The effect of the Texas Liquor Control Act is to confine the business of transporting intoxicating liquors through the state to those who are licensed as common carriers. The regulation is reasonable, and appropriate to the end in view, and we are not authorized to hold it invalid. In Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128, the court upheld the provisions of the Kentucky Alcohol Beverage Act, which forbade the transportation of intoxicating liquor by carriers other than licensed common carriers. The court said: "The conditions are not unreasonable and are clearly appropriate for effectuating the policy of limiting the traffic in order to minimize well-known evils and secure payment of revenue."

In United States v. Frankfort Distilleries, 324 U.S. 293, 300, 65 S.Ct. 661, 665, 89 L.Ed. 951, Mr. Justice Frankfurter, concurring, said: "As a matter of constitutional law, the result of the Twenty-First Amendment is that a State may erect any barrier it pleases to the entry of intoxicating liquors. Its barrier may be low, high, or insurmountable. Of course, if a State chooses not to exercise the power given it by the Twenty-First Amendment and to continue to treat intoxicating liquors like other articles, the operation of the Commerce Clause Art. 1, § 8, cl. 3 continues. Since the Commerce Clause is subordinate to the exercise of state power under the Twenty-First Amendment, the Sherman Law 15 U.S.C.A. §§ 1-7, 15 note deriving its authority from the Commerce Clause, can have no greater potency than the Commerce Clause itself. It must equally yield to state power drawn from the Twenty-First Amendment." In Duckworth v. Arkansas, 314 U.S. 390, 399, 62 S.Ct. 311, 316, 86 L.Ed. 294, 138 A.L.R. 1144, Mr. Justice Jackson, concurring, said: "The 21st Amendment might bear a construction that would allow a state to prohibit liquor from entering its borders at all unless by responsible carrier under consignment to some lawful destination within or beyond the state." In Carter v. Virginia, 321 U.S. 131, at page 138, 64 S.Ct. 464, at page 469, 88 L.Ed. 605, Mr. Justice Black said: "I am not sure that state statutes regulating intoxicating liquor should ever be invalidated by this Court under the Commerce Clause except where they conflict with valid federal statutes. * * * The Twenty-First Amendment has placed liquor in a category different from that of other articles of commerce. * * * this much is settled: local, not national, regulation of the liquor traffic is now the general Constitutional policy." In Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814, the court held the seizure illegal because the transportation of liquors through Oklahoma violated no law of that state. The distinction between that case and this one is that there the transportation was legal, since Oklahoma required no permit, while here the transportation was illegal, since a permit was required but appellee was not eligible to obtain one, and had none.

The above quotations are from concurring opinions, but they were written because the majority opinions went further in upholding the police power of the states to place burdens upon interstate commerce with reference to intoxicants than the writers desired to go under the Commerce Clause, Art. 1, § 8, cl. 3. The concurring judges thought that the decisions should rest upon the Twenty-First Amendment, which all the justices agreed subordinated the Commerce Clause to the power of the states to regulate the use and transportation of intoxicating liquors within their...