State v. Country Club

• Decision Date: 16 December 1914
• Docket Number: (No. 5430.)
• Citation: 173 S.W. 570
• Parties: STATE v. COUNTRY CLUB.
• Court: Texas Court of Appeals

173 S.W. 570

STATE v. COUNTRY CLUB.

(No. 5430.)

Court of Civil Appeals of Texas. Austin.

December 16, 1914.

On Motion for Rehearing, January 20, 1915.

Appeal from District Court, Travis County; Charles A. Wilcox, Judge.

Suit by the State of Texas to enjoin the Country Club from selling intoxicating liquors to its members, from selling liquors on Sundays and election days, from maintaining pool and billiard tables upon its premises, and from using its property for such purposes or any purpose other than maintaining a golf club. Decree granting injunction only against selling intoxicating liquor on election days, and the State appeals. Affirmed in so far as it granted the injunction and in so far as it refused the injunction against maintaining billiard and pool tables, and reversed in all other respects, and judgment rendered for the state.

B. F. Looney, Atty. Gen., and W. A. Kelling and C. M. Cureton, Asst. Attys. Gen., for the State. Thelbert Martin and Lightfoot, Brady & Robertson, all of Austin, for appellee.

Statement of the Case.

JENKINS, J.

This is a suit to enjoin the appellee: (1) From maintaining a buffet, and dispensing intoxicating liquors to its members. (2) From using its stock, means, assets, and property for such purpose. (3) From dispensing intoxicating liquors to its members on Sundays and on election days. (4) From maintaining and operating pool and billiard tables upon its premises, and from using its stock, means, assets, or other property for such purpose, or for any purpose other than maintaining a golf club.

Findings of Fact.

We adopt as our findings of fact the following agreed statement of facts:

"It is agreed that the Country Club is a private corporation, duly and legally incorporated under the laws of the state of Texas, with its place of business in the city of Austin, Travis county, Tex., and that Lewis Hancock is the president of said club.

"It is further agreed that the Country Club was duly and legally incorporated on or about the 11th day of February, A. D. 1907, as shown by the certified copy of its charter attached to plaintiff's petition.

"It is further agreed that the purpose for which said club was formed `is to support and maintain a golf club, and other innocent sports in connection therewith.'

"It is further agreed that said corporation was organized in good faith, and that shortly after or about the time of its organization said corporation purchased a large tract of land in the city of Austin, and has erected thereon valuable improvements, consisting of a clubhouse, with furnishings, and a golf course; that said property, together with additional land purchased, and additional improvements made in recent years, is of the reasonable value of $35,000; that said clubhouse and the said golf course, and other property and conveniences incident thereto, are used exclusively by the members of the club and their guests; that, in connection with the said clubhouse, the club uses a quantity of household, club, and kitchen furniture; that it has a library, consisting of quite a number of books, magazines, and periodicals; that it maintains in its clubhouse and about its grounds a steward and a corps of servants, maintains a café for the service of meals, if called for by, and only by, its members, and for the sole use of themselves and their invited guests; that said club also maintains, and has for many years maintained, a buffet on its premises, for the purpose of selling and dispensing intoxicating liquors to its members only, and for the purpose of dispensing intoxicating liquors to its invited guests; that in the maintenance of the said buffet it has from time to time expended large sums of money for the purchase of intoxicating liquors, and paying its servants and agents for serving and dispensing the same, in connection with their other duties; that said club has sold its intoxicating liquors to its members only, not for the purpose of making a profit, but for the purpose of realizing a sufficient amount thereof above the cost price thereof to pay for the maintenance and service of said buffet, and to pay the cost of said liquors; that it maintains said buffet, and daily sells intoxicating liquors to its members only at reasonable hours, not only on week days, but also upon Sundays and election days; that the sale and dispensing of liquors by said club to the extent and in the manner aforesaid has not been and is not by way of trade or business, and is conducted under strict rules and regulations, and under the supervision of the board of directors and a house committee, and such liquors are not sold or dispensed to minors or students.

"It is further agreed that said club was incorporated in good faith for the purposes mentioned in its charter, and was not incorporated, and is not being maintained as a device or scheme to evade the payment of any tax to the state of Texas, the county of Travis, or the city of Austin, nor is it a scheme or device to evade any of the license or liquor laws of the state of Texas, or of any subdivision or municipality thereof; that the sale of liquor to its members and the dispensing of same to its members and guests has been merely incidental to its lawful corporate purposes and for the enjoyment and convenience of such members and guests.

"It is further agreed that said club has also invested its funds in two pool and billiard tables, which it keeps, maintains, and operates in its clubrooms for the use of its members and the invited guests of the club, who are permitted to use and play on the same without any cost or charge, other than the admission fees or dues paid by such members to the club; but the privilege of using said pool and billiard tables is denied to minors.

"It is further agreed that the said club has not heretofore, nor has it at this time, taken out and paid any liquor dealers' license, or license to operate said pool and billiard tables, but has at all times dispensed and sold its intoxicating liquors as aforesaid, without having taken out any liquor dealers' license under the laws of the state, or qualified as a retail dealer, and has at all times maintained and operated said pool and billiard tables without paying any taxes or license fees for so doing to the state, to the county, or to the city; that it has constantly sold and is now selling and dispensing its intoxicating liquors in the manner and to the extent as aforesaid, in quantities of one gallon or less, to be drunk on its premises by members and invited guests, and its members have constantly and are now buying said intoxicating liquors from said club in quantities of one gallon or less and drinking the same on its premises; that the maintenance and operation of said pool and billiard tables has not been by way of business or for profit, but purely as an incident of the corporate purposes named in its charter.

"It is further agreed that while the said club has not paid any license fees or taxes to the state, county, or city for the privilege of selling and dispensing liquors in the manner aforesaid, or for keeping and maintaining said pool and billiard tables, it has not done so because it believes that it was not liable to pay license fees or taxes for exercising these privileges, and because defendant has been and is now advised by counsel that it is not liable for such license fees and taxes.

"It is further agreed that the premises of defendant upon which is situated its clubhouse, containing said buffet and said pool and billiard tables, is not within local option territory, nor situated where the sale of intoxicating liquors is forbidden by any law, state or municipal, nor where the keeping and operating of billiard and pool tables is prohibited; that the defendant has placed its clubrooms under the control of a house committee, consisting of one member, whose duty, under the rules, is to see that the club is closed every night at 11 o'clock; that the admission fee of members is $25, and that the annual dues are $24 for each male member and $16 for each lady member, and that applicants for membership must have their names posted for two weeks before being voted upon, and one negative vote in the board of directors, or the written protest of seven members of the club, rejects the applicant; that the privileges of the club are extended to guests under strict rules and regulations, and under the control of the directors and house committee; that the said club has been continuously operated and conducted with a view solely to furnishing its members and their invited guests facilities for playing the game of golf, which is a game played only in the daytime, and the playing of which is attended with fatigue, making it beneficial as a form of exercise, as well as amusing from the skill required in playing it. The fatigue resulting from the playing of this game induces appetite and thirst, and the provisions and liquors furnished by the club to its members are only incidental to the playing of the game, and the library and other reading matter supplied are so supplied for the same purpose, and that the same is true also of the pool and billiard tables maintained by the club; that is, to serve the comfort of players while waiting an opportunity to play, or resting from the fatigue incident to golf, or for the convenience and pleasure of those who prefer to play pool and billiards.

"It is further agreed that while the said club has dispensed and is dispensing intoxicating liquors to its members and guests on Sundays and election days, and has on said days operated said pool and billiard tables, as well as on other days of the week, it has done so in the belief, on the part of the management, that it was neither illegal nor beyond its corporate power so to do, and the sale and dispensing of liquors on Sundays, and the use of said pool and billiard tables, has been limited to members and guests only, and in the same strict and limited manner...