De Grazier v. Stephens

• Decision Date: 11 December 1907
• Citation: 105 S.W. 992
• Parties: DE GRAZIER v. STEPHENS, Comptroller.
• Court: Texas Supreme Court

105 S.W. 992

DE GRAZIER v. STEPHENS, Comptroller.

Supreme Court of Texas.

December 11, 1907.

Mandamus by Tony De Grazier to compel J. W. Stephens, Comptroller of the state, to issue petitioner a permit to apply for a liquor license. Denied.

Todd & Hurley, for relator. Jas. D. Walthall, Asst. Atty. Gen., for respondent.

GAINES, C. J.

This is a petition for a writ of mandamus to compel the Comptroller of the state to issue to the relator a permit to apply to the judge of the county court of Bowie county, Tex., for a license to pursue the occupation of a retail liquor dealer in the city of Texarkana, Tex. Section 9 of the act regulating the sale of intoxicating liquors, approved April 10, 1907 (Acts 1907, p. 260, c. 138), prescribes as preliminary to obtaining a license to sell such liquor that the proposed liquor dealer shall apply to the Comptroller of Public Accounts for a permit to apply to the county judge of the proper county for a license. The application is to be under oath, and must show, among other things, the place of residence of the applicant, and that "he is not disqualified under the laws of this state regulating and affecting the sale of intoxicating liquors from engaging in such business." Section 10 of the act provides that: "Any person or firm desiring a license as a retail liquor dealer or as a retail malt dealer, may in vacation or in term time file a petition with the judge of the county court of the county in which he desires to engage in such business, which petition shall have attached thereto the permit required by section 9 hereof, as an exhibit to such petition, shall state that the applicant is a law-abiding, tax-paying, male citizen of the state of Texas, over the age of twenty-one years, and has been a resident of the county wherein such license is sought for more than two years next before the filing of such petition; that his license as a retail liquor dealer or retail malt dealer has not been revoked or forfeited within two years next before the filing of such petition. * * * Upon the filing of the petition herein provided for, the county judge shall set the same for hearing at a time not less than ten or more than twenty days from the filing of the same, and if, upon the trial or hearing hereof, he finds the facts stated in said petition are true and that the same is accompanied by the permit aforesaid, he shall grant a license such as prayed for." So that under the provisions of the act a residence for two years in the county wherein such license is sought is necessary to qualify the applicant to obtain a license. The application to the Comptroller for the permit in question is made a part of the petition, and gives the applicant's residence "in the city of Texarkana, county of Miller, state of Arkansas." It also contains the statement: "I am not disqualified under the laws of this state from engaging in such business unless the fact of not having resided in Bowie county, Texas, for more than two years constitutes a disqualification."

The relator assails the validity of the requirement of a previous residence in the county where the business is proposed to be carried on for two years next before the filing of the petition upon the grounds: "(1) It is in violation of article 4, § 2, of the Constitution of the United States, which provides that `the citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states.' (2) And is also in violation of article 14, § 1, of said Constitution of the United States, which provides that `no state shall deny...