Stubbs v. Texas Liquor Control Board, 13381.

• Decision Date: 23 October 1942
• Docket Number: No. 13381.,13381.
• Citation: 166 S.W.2d 178
• Parties: STUBBS et al. v. TEXAS LIQUOR CONTROL BOARD.
• Court: Texas Court of Appeals

166 S.W.2d 178

STUBBS et al. v. TEXAS LIQUOR CONTROL BOARD.

No. 13381.

Court of Civil Appeals of Texas. Dallas.

October 23, 1942.

Rehearing Denied November 20, 1942.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

The Texas Liquor Control Board cancelled the wine and beer retailer's permit held by C. G. Stubbs, Jr., and others, on ground that their place of business was within 300 feet of a church. From that order, C. G. Stubbs, Jr., and others appealed to the district court. From a judgment affirming the board's action, but permitting the suspension of judgment pending appeal, C. G. Stubbs, Jr., and others appeal.

Judgment affirming action of board affirmed, and supersedeas bond quashed.

Carlton, Martin & Street, of Dallas, for appellants.

Gerald C. Mann, Atty. Gen., and Owen D. Cox, W. P. Watts, R. D. Moorhead, Edgar Pfeil, and George W. Barcus, Asst. Attys. Gen., for appellee.

LOONEY, Justice.

The Texas Liquor Control Board canceled the wine and beer retailer's permit held by the appellants, on the ground that their place of business was within 300 feet of the South Dallas Christian Church; from the order, appellants appealed to the district court, pending which, the judge suspended the order of cancellation; but after a full hearing on the merits, the court dissolved the temporary suspension order and, in all respects, upheld and affirmed the action of the Board; from which this appeal was prosecuted. Over the objection of the Board, the court permitted appellants to suspend the judgment, pending the appeal, by the execution of a supersedeas bond.

The first question presented involves the ruling of the court, permitting appellants to suspend the judgment pending appeal to this court. In the case of E. P. Hallum, Appellant, v. Liquor Control Board, 166 S.W.2d 175, this day decided, presenting the identical question, we held that the trial court erred in permitting the judgment of cancellation to be superseded pending the appeal. So, for the reasons given in the opinion filed in the Hallum case, we also hold that the court erred in the instant case, and that the supersedeas bond executed by appellants should be and is hereby quashed.

The facts being undisputed, the question for decision is, whether appellants' place of business is located within 300 ft. of the Church in question; if so, it is prohibited under the Liquor Control Act as well as the ordinance of the City of Dallas.

The City Council of the City of Dallas, as authorized by Art. 666 — 25a of Vernon's Ann.Penal Code, passed an ordinance prohibiting the issuance of a license or permit to any dealer or person engaged in handling liquors (described in the Texas Liquor Control Act), where the place of business of such dealer is within 300 ft. or any church, etc. The statute provides for "the measurements to be along the property lines of the street fronts and from front door to front door and in direct line across intersections where they occur."

The facts are these: The South Dallas Christian Church is located at the intersection of Grand Avenue and South Harwood Streets in the City of Dallas; the Church has two front or main doors facing on Grand Avenue; back of the main church auditorium, and attached to it, is a wooden building used as a Sunday school room, which has a main or front door that opens on South Harwood Street, through which, entrance may be had to all parts of the church. Appellants' place of business is located at the corner of South Harwood and an alley, and fronts on South Harwood Street opposite the Sunday school annex, its front door being at the northeast corner of the building occupied. The statement of facts contains pictures of the church building proper, the Sunday school annex, the different entrances, appellants' place of business, also a plat showing the relative positions of the buildings and some of the measurements.

Appellants' contention, in substance, is that, under the rule prescribed, measurement should begin at the center of the door of appellants' place of business, thence to South Harwood Street, 51.5 ft.; thence on Harwood to its intersection with Grand Avenue, a distance of 129 ft.; thence across Harwood Street to a point opposite the center of the front entrance of the church on Grand Avenue, a distance of 100.6 ft.; thence 23 ft. from the line of...