Louder v. Texas Liquor Control Board, 4574.
| Decision Date | 30 September 1948 |
| Docket Number | No. 4574.,4574. |
| Citation | 214 S.W.2d 336 |
| Parties | LOUDER et al. v. TEXAS LIQUOR CONTROL BOARD. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; Owen Lord, Judge.
Mandamus proceedings by D. I. (Jack) Louder, and others against the Texas Liquor Control Board to compel the issuance of licenses to the petitioners. From a judgment for defendant, petitioners appeal.
Affirmed.
Baker, Vaughan & Black, of Pt. Arthur, for appellants.
Price Daniel, Atty. Gen., and William S. Lott and Clinton Foshee, Asst. Attys. Gen., for appellee.
The appellants, Louder, et al., operated stores for the sale of alcoholic liquors under licenses granted by the appellee, The Texas Liquor Control Board, in areas adjacent to the City of Port Arthur, in Jefferson County. Their licenses expired on August 31, 1948, and when they made application for their renewal the appellee board refused to renew them for the stated reason that such areas are now a part of the incorporated city of Port Arthur, which city had by zoning provisions in its charter restricted the sale of alcoholic liquor to certain areas which did not include the annexed areas. The appellants brought suit in the district court of Jefferson County, praying that the appellee board be required by writ of mandamus to issue the licenses to the respective persons for their respective locations. The district court refused to grant such writs of mandamus, and the appellants have perfected their appeal to this court for review of the trial court's action.
The facts in the case are not in dispute. Jefferson County, in which lies the city of Port Arthur, by a local option election in 1935, voted wet and no local option election has been held in Jefferson County or the City of Port Arthur since that time. The local option status of Port Arthur remains wet. In May, 1948, the City of Port Arthur annexed two adjacent areas in which appellants were lawfully engaged in the sale of alcoholic liquors. The City of Port Arthur has in effect a zoning provision of its charter, Chapter XXIII, Section 3-A, which provides:
"No spiritous, vinous, and malt liquors or beer shall be sold or any license or permit be issued for the sale of same, either by the State, County, or City, except within the following defined areas and/or boundaries within the City of Port Arthur, Texas, to-wit: * * *."
The effect of the above provision of the charter of the City of Port Arthur was to zone the sale of alcoholic beverages and confine the sale thereof to a small area of the city.
No reason is assigned by the appellee board for refusing to renew the licenses of the appellants other than the fact that the locations for which licenses are desired are within the City of Port Arthur and are not within the zone in which the sale of alcoholic liquors is permitted to be sold under the charter of the City of Port Arthur. No ordinance or amendment to the charter of the City of Port Arthur had been passed or adopted since the date of the annexation, relating to the zoning for liquor of the annexed areas.
The appellants bring their appeal upon eleven points, under which they assign error to the action of the trial court. They contend that (1) the trial court erred in not granting them the relief prayed for; (2) the liquor zoning portion of the city charter, Section 3a of Article 23, did not apply to their applications for liquor licenses, and therefore when they filed their applications and bonds in due order, the trial court should have ordered the licenses to be issued; (3) there was no ordinance regulating the annexed territory in question, since Article 666 — 1 et seq. of Vernon's Annotated Penal Code failed to provide a means whereby package stores such as theirs could be zoned or regulated; (4) there being no temporary zoning ordinance or regulation affecting the annexed territory, the licenses should have been issued; (5) the annexed territory did not lose its wet status when it was annexed by the City of Port Arthur, and the trial court therefore was in error in holding that the annexed territory became a part of the dry zone of the city when annexed; (6) Section 3a, Article 23, of the city charter did not apply to the annexed areas; (7), (8) and (9), the City of Port Arthur could not exercise any privileges pertaining to the operation of businesses in the annexed territory until the city commission, by a temporary ordinance or a permanent ordinance or an amendment to the charter was enacted to regulate zoning in the annexed territory, and the trial court was in error in failing to order the issuance of the licenses by appellee to the appellants; (10) any regulatory ordinance or amendment to the charter of the City of Port Arthur could not and did not extend to and govern any annexed territory because such would deprive the persons in the annexed territory, particularly the appellants, of the right and privilege to be heard on the regulatory regulations and the trial court by its holding deprived the appellants of a valuable property right without due process of law; (11) the territory where appellants have been operating their liquor stores is strictly in a business district, and Article 666 — 24, of the Penal Code of Texas therefore does not apply, and the trial court erred in not granting the mandamus as prayed for.
The appellee presents its answer to the arguments of the appellants in one Counter Point. It says, "Section 3-A, Chapter XXIII, of the charter of the City of Port Arthur, which confines the sale of alcoholic beverages to a certain described area in the downtown business section, applies to and governs the recently annexed areas to the City of Port Arthur, thereby prohibiting the sale of alcoholic beverages in such areas and is sufficient grounds for the Texas Liquor Control Board to refuse to renew the liquor licenses of the appellants."
The appeal thus presents to us the questions of law which are summed up in the counter point of the appellee.
It is well established in our jurisprudence that a home rule city such as Port Arthur can regulate the sale of alcoholic beverages by zoning. Le Gois v. State, 80 Tex.Cr.R. 356, 190 S.W. 724. The zoning section of the Port Arthur charter was before this court in the earlier cases of Pitre v. Baker, Tex.Civ.App., 111 S.W.2d 359, and Tritico v. Texas Liquor Control Board, Tex.Civ. App., 126 S.W.2d 738. In the Pitre case, supra, this court held said Section 3a of Chapter XXIII of the Port Arthur charter was not in conflict with the constitution of the State of Texas, or the Texas Liquor Control Act, or the other laws of the State, and that the City of Port Arthur had the right and power to restrict the sale of alcoholic liquors to the area designated in such zoning section of the charter. In the Tritico case, supra, the appellants applied for renewal of their licenses or permits to sell liquor at retail at their place of business in Port Arthur. The permit was refused because the store was located within an area in the City of Port Arthur where the sale of alcoholic liquors had been prohibited by said Section 3a, Chapter XXIII of the city charter. Then they brought suit, seeking a writ of mandamus to compel the issuance of the permits. The writer of this opinion was the trial judge in the case, and he refused to grant the mandamus. On appeal, this court affirmed the judgment of the trial court. In its opinion the court reaffirmed the principles announced in Le Gois v. State, supra, and Pitre v. Baker, supra, and further said in its opinion [Tex. Civ.App., 126 S.W.2d 740]:
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