State v. Bush
| Decision Date | 10 December 1952 |
| Docket Number | No. A-3888,A-3888 |
| Citation | 253 S.W.2d 269,151 Tex. 606 |
| Parties | STATE v. BUSH et al. |
| Court | Texas Supreme Court |
Price Daniel, Atty. Gen., J. Milton Richardson, John Davenport and Clyde B. Kennelly, Asst. Attys. Gen., for relators.
Henry Klepak and John P. Koons, Dallas, for respondents.
This is a proceeding on behalf of the State of Texas, the Texas Liquor Control Board, and its Administrator, wherein a writ of mandamus is sought against Billy & Johnny's Barbecue, Inc.; Ray Donihoo, who is the owner of a controlling interest in the corporation, and Honorable Paine L. Bush, Judge of the 68th Judicial District at Dallas, Texas. Billy & Johnny's, Inc. (hereinafter referred to as applicant) was the owner of a permit issued by the Liquor Control Board (hereinafter referred to as the Board) and dated October 8, 1951 to sell, at retail, wine and beer. On October 6, 1952, Coke R. Stevenson, Jr., as Administrator of the Board, issued an order rejecting the application of Billy & Johnny's for a renewal of such wine and beer permit, and requiring the applicant 'to file its application before the County Judge of its residence and submit to a hearing thereon before the said County Judge as in the case of an original application for a license or permit, etc.' On October 17, 1952, the Judge of the County Court at Law No. 2 for Dallas County, Texas, held a hearing on the application for a wine and beer permit filed before such Judge by the applicant. The Judge of the County Court at Law No. 2, Dallas, Texas, entered his order that the Board had never in fact cancelled the permit and that the applicant was by said Board required to file its application before 'this Court' for a hearing on a renewal of such permit. The Judge of said County Court at Law No. 2 thereupon granted the application for renewal of the wine and beer permit and ordered the Board to issue a renewal to applicant instanter.
On November 7, 1952 applicant filed its petition in the 68th District Court in Dallas, Texas, in which it sought a temporary restraining order and a temporary injunction restraining the Board from interfering with the business of said corporation in any way and from seizing wine and beer of applicant offered for sale in its place of business, and also for renewal of its permit. The Judge of the 68th District Court on the 7th day of November, 1952, issued a temporary restraining order against the Board, its officers and agents restraining them from confiscating beer and wine from applicant's premises or from harassing, annoying or molesting plaintiff (applicant herein) in the lawful operation of its business until further orders of the court. A hearing was had on November 10, 1952 on the merits of applicant's petition and the Board's answer and motion to dissolve. The Judge of the 68th District Court, after hearing evidence, took the matter under advisement and required the attorneys for both parties to submit briefs on the law questions involved, and continued 'until the further orders of the Court' the restraining order against the Board, its officers and agents, and permitted applicant to continue the sale of wine and beer. The State of Texas, acting by and through its Attorney General, joined by the Board and its Administrator, filed this application for mandamus before us.
The issuance of a permit to sell wine and beer is controlled by certain provisions of the Liquor Control Act, Articles 666-1 et seq., and 667-1 et seq., Vernon's Texas Penal Code.
Article 666-4(a) provides that it shall be unlawful for any person to sell, possess for the purpose of sale, etc., any liquor in wet areas without first having procured a permit of the class required for such privilege. Article 667-3 provides that it shall be unlawful for any person to sell any beer, or to possess any beer for the purpose of sale within this State without having first obtained appropriate license as provided in the Act. Article 666-15 classifies the various kinds of permits to be issued by the Board. Paragraph (17) of this Article provides for 'Wine and Beer Retailer's Permit', and authorizes their issuance by the Board or Administrator. It further provides that '* * * All such permits shall be applied for and issued, unless denied, and fees paid, upon the same procedure and in the same manner and upon the same facts and under the same circumstances, and for the same duration of time, and shall be renewable in the same manner, as required and provided to govern application for an issuance of Retail Beer Dealer's Licenses under Article II of this Act * * *.' Article II referred to is Article 667-1 et seq., Vernon's Texas Penal Code. Section 5 et seq. of Article 667 requires that the application be filed with the County Judge of the county in which the applicant desires to engage in such business; that the County Judge before whom an application is filed shall set a hearing not less than five days nor more than ten days from filing of same, and notice of hearing is to be given as the law provides. After a hearing before the County Judge, if the judge grants the application, he enters an order to such effect and the applicant files a copy of the County Judge's order with the tax collector of the county and pays the statutory license fee. The collector reports to the Board that the application for license has been approved and all fees paid and attaches a copy of the original application to his report, and it is prescribed that the Board or Administrator shall issue the license accordingly if it is found applicant is entitled to a license. There is a proviso that the Board or Administrator may refuse to issue any such license if in possession of information from which it is determined that any statement contained in the application therefor is false, untrue, or misleading, or that there are other legal reasons why a license should not be issued. In the event the County Judge denies the application, or there is a denial by the Board or Administrator, a judgment accordingly shall be entered, and applicant has 30 days thereafter to appeal to the District Court of the county where the application is made, where the appeal is conducted in accordance with Article I Section 14, art. 666-14. In the event judgment of the District Court is favorable to the applicant and an appeal is taken by the Board, or any interested party, 'a certified copy of the judgment shall be presented to the assessor and collector of taxes who shall thereupon accept the fees required and make report to the Board in the manner required upon like orders issued by the county judge.' Subdivision (g), art. 667-6, provides: 'No person shall be authorized to sell beer during the pendency of his original application for a license, and no official shall advise or suggest that such action would be lawful or permitted.' Article 667-5, Subdivision (E) provides:
'If the County Judge approves the application for a license as a Retail Dealer of beer, then the Board or Administrator may refuse to issue a Retailer's License to any applicant for any one (1) or more of the reasons which would have been legal ground for the County Judge to refuse to approve the application for such a license.'
Subdivision (H) of the same Article provides:
'The Board or Administrator may, upon application for renewal of a Retail Dealer's License, without a hearing, refuse to issue a license to any person under the restrictions of this Section, as well as under any other pertinent provisions of this Act, and require such applicant to make an original application.'
Article 666-11(15) provides:
'The Board or Administrator shall be vested with discretionary authority to refuse or grant such permits under the restrictions of this Section, as well as under...
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