Ex Parte Kimberlin
| Decision Date | 09 October 1935 |
| Docket Number | No. 6971.,6971. |
| Citation | 86 S.W.2d 717 |
| Parties | Ex parte KIMBERLIN. |
| Court | Texas Supreme Court |
This is an original habeas corpus proceeding, whereby Sam Kimberlin seeks release from a commitment issued out of the district court of the Fourteenth judicial district of Texas, at Dallas, on September 26, 1935; said commitment having been based on a judgment finding him in contempt of court by reason of the wilful violation of a restraining order previously issued.
On July 29, 1935, Julius Klugsberg of Dallas county, doing business under the trade-name of Interstate Tobacco Company, filed petition in the district court of Dallas county, complaining of George H. Sheppard, in his capacity as Comptroller of Public Accounts of the State of Texas, and others, including Sam Kimberlin in his capacity as assistant and deputy of the said Sheppard. In his petition plaintiff set out in substance the various provisions of what is known as the "Cigarette Tax Law of the State of Texas," as enacted by H. B. No. 755, chapter 241, of the Forty-Fourth Legislature, and which became effective May 11, 1935 (Vernon's Ann. Civ. St. art. 7047c—1, and Vernon's Ann. P. C. art. 131c—1). He then alleged that defendants George H. Sheppard and his deputies, including relator, were charged with the enforcement of the various provisions of that law.
Plaintiff alleged that he was engaged in the business of selling cigarettes exclusively and solely in interstate commerce; that his principal place of business was at Neosho, Mo., where he kept his office, warehouse, stock of cigarettes, etc.; and that the manner of doing business was as follows: That he made his purchase of cigarettes in wholesale quantities; that they were shipped in interstate commerce to Neosho, Mo., and there held by him in stock; that he had one or more general salesmen in the state of Texas and other solicitors and salesmen who worked under the supervision of the general salesmen; that his solicitors obtained orders from various persons within the state of Texas for cigarettes to be shipped from the stock held at Neosho, Mo., which orders were forwarded to the general salesmen, who in turn sent them to the office at Neosho, Mo., for approval; that after orders were accepted in this way the cigarettes were put in separate lots or packages according to the individual orders and each separate lot labeled with the name of the particular purchaser; that after the orders were filled in this manner, the cigarettes were forwarded in one bulk shipment to the general salesmen, who then turned over to the salesmen the separate orders of the various purchases, and these salesmen delivered same to the purchasers; that upon delivery of same the purchase money was paid by the purchaser to the solicitor and was then forwarded to the office at Neosho, Mo. It is also shown that when the cigarettes were finally delivered to the purchasers and payment made, plaintiff had completely and finally parted with title to same and had nothing further to do with them.
Plaintiff alleged that although his business as above conducted and the cigarettes sold by him in this manner were not subject to any of the provisions of the Cigarette Tax Law, being entirely within interstate commerce, nevertheless the Comptroller and his assistants were seeking and attempting to make the provisions of the law applicable to him and to his business, and were in various ways interfering with him in the conduct of his business by attempting to make applicable said law and to collect the taxes therein provided for upon cigarettes handled by him. Allegations were made of several specific acts on the part of the Comptroller and his assistants, including threats of prosecution against solicitors and salesmen, in an effort to make him and his business subject to provisions of the law.
The constitutionality of the Cigarette Tax Law was attacked on many grounds not necessary to mention here. Among other things, it is alleged that the Comptroller "seeks to extend the terms of its prohibitions and penalties to persons and consumers buying in interstate commerce, and thereby destroying, crippling and overthrowing the lawful business of your petitioner, by inculcating in the minds of the purchasers who buy from petitioner in interstate commerce that purchases under such circumstances are criminal in their nature and violative of the terms of this act, and expose such purchasers and consumers so buying from your petitioner to the pains, penalties and punishment of the law; and that the effect of such act and the extension of its penalties and prohibitions to such purchasers, customers and patrons is to deny to your petitioner the right under the Federal and State Constitutions, to conduct his business through the avenues of interstate commerce, and to lawfully sell to purchasers desiring to consume his cigarettes such tobacco commodities, all of which is contrary to the interstate commerce clause of the Federal Constitution hereinbefore set out, and is contrary to the Fourteenth Amendment to the Federal Constitution, in that it seeks to deprive the petitioner of his rights, his property and his liberty without due process of law; and by liberty as herein meant is the liberty to pursue a lawful calling in and under the provisions of the Interstate Commerce Clause of the Federal Constitution hereinbefore mentioned."
Plaintiff prayed for a restraining order to continue until such time as a hearing might be had for a temporary injunction and that finally he be awarded a permanent injunction against the Comptroller and other defendants including relator. As the temporary restraining order followed almost verbatim the language of the prayer in the petition, we set out the restraining portion thereof. Among other things, the defendants were commanded to "desist and refrain from harassing and annoying petitioner, his agents, and servants in the prosecution and conduct of such interstate business as aforesaid, and commanding and enjoining them to refrain from arresting and criminally prosecuting, under the Act aforesaid, your petitioner his agents, servants and employees, in the conduct of such interstate trade, and commanding and enjoining the said defendants and each of them, their agents, servants and employees, to desist and refrain from seizing and confiscating the goods and commodities of your petitioner, shipped in interstate commerce, and commanding said defendants, and each of them, their agents, servants and employees, from wrecking the business of the petitioner by proclaiming to the general public that the purchase of petitioner's goods and commodities shipped in interstate commerce are criminal in their nature, and will subject the patrons and customers of your petitioner to criminal prosecution and to the infliction of pains and penalties, where such purchases are made; and further to desist, abstain and refrain from annoying, harassing, threatening or intimidating purchasers and patrons of petitioner who buy his merchandise through channels of interstate commerce, from petitioner, his agents, servants and employees, for their own private consumption, and not for resale, and to desist and refrain from threatening such purchasers and patrons with criminal prosecution for such purchases or to seize or confiscate cigarettes so purchased or to institute under such circumstances criminal prosecutions therefor."
The temporary restraining order was entered on July 29, 1935, and served as to certain defendants at 4:30 o'clock p. m. of that day. It was especially provided that the defendants should appear at 9 o'clock a. m. on August 1, 1935, and show cause why a temporary injunction should not issue. On September 21, 1935, plaintiff Klugsberg filed in the district court a motion for...
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