Texas Liquor Control Bd. v. Super Savings Stamp Co.
| Decision Date | 15 May 1957 |
| Docket Number | No. 13144,13144 |
| Parties | TEXAS LIQUOR CONTROL BOARD et al., Appellants, v. SUPER SAVINGS STAMP COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
Will Wilson, Atty. Gen., John R. Lennan, Asst. Atty. Gen., Fred Nieman, Charles M. Babb, R. Emmett Morse, Austin, Weaver Moore, Houston, for appellants.
Davis, Clemens, Knight & Weiss, San Antonio, for appellee.
This suit was brought by Super-Savings Stamp Company and Atomic Stores, corporations, against Coke R. Stevenson, Jr., Administrator of the Texas Liquor Control Board, and L. D. Newman, Senior District Supervisor of the Texas Liquor Control Board, seeking an injunction to restrain certain acts hereafter discussed. The Texas Liquor Control Board, composed of Summers A. Norman, W. D. Noel and Wilson Heard, Jr., cross-actioned in the case, seeking a declaratory judgment. The trial court rendered a final judgment for plaintiffs. The parties stipulated that the trial should be upon the merits and this appeal by defendants and cross-plaintiff is from that judgment. $The fact situation in this case originated with a telephone call in March, 1956, from Max Grossman, Secretary of Atomic Stores in San Antonio, to L. L. Newman, Senior District Supervisor of the San Antonio Division of the Texas Liquor Control Board. Atomic Stores were interested in obtaining a decision from the Liquor Control Board as to the legality of a distribution of premium stamps by Atomic Stores to purchasers of alcoholic beverages from said stores. These stamps were issued in conjunction with the sale of alcoholic beverages in a ratio of one stamp for every ten cent purchase. The stamps were redeemable at the center operated by the co-plaintiff, Super-Savings Stamp Company of San Antonio, where they could be turned in for various items of merchandise.
In response to the phone call of March, 1956, F. S. Bresenhan, Supervisor of the Marketing Practices Unit of the Texas Liquor Control Board, informed Mr. L. L. Newman of a letter, dated December 2, 1955, written by him to Mr. Harry J. Wolf, General Manager of Exchange Stamp Company, stating that the issuance of such stamps would be all right. Mr. Newman then informed Mr. Grossman of this, and a contract was entered into between Atomic Stores and Super-Savings Stamp Company for the purchase of Triple 'S' Stamps.
Subsequently, Mr. Evans, an employee of Atomic Stores, was informed by the San Antonio Office of the Texas Liquor Control Board that Atomic Stores must discontinue their issuance of stamps. Mr. Grossman, on learning of this, made inquiry about the matter and was informed that Coke R. Stevenson, Jr., Administrator of the Liquor Control Board, on June 11, 1956, had written Mr. John Nelms, President of Texas Package Stores Association, and in his letter had informed Mr. Nelms that it was his, Stevenson's, interpretation of the law that issuance of stamps in conjunction with the sale of alcoholic beverages was not allowed under the Texas Liquor Control Act, Vernon's Ann.P.C. art. 666-1 et seq. Mr. Grossman then telephoned Mr. Stevenson and was informed that Atomic Stores would have to discontinue the issuance of stamps.
There was no action taken by the Board or any of its agents, or employees toward cancelling the license of plaintiff Atomic Stores, however, the letter written by Mr Stevenson, Administrator, to Mr. Nelms, did state that administrative action would be taken against the permit of any one violating the Board's interpretation of the Texas Liquor Control Act with respect to the issuance of premium stamps.
Subsequently, plaintiffs filed suit seeking an injunction against the defendants, Texas Liquor Control Board, and obtained a permanent injunction restraining the Administrator and the agents, inspectors and employees of said Board from taking any action whatsoever against plaintiffs in regard to the issuance of premium stamps by Atomic Stores.
For the sake of brevity the plaintiff Atomic Stores will be referred to as the operator; the plaintiff, Super-Savings Stamp Company, as the Stamp Company; Coke Stevenson, Jr., Administrator of the Texas Liquor Control Board, will be referred to as the Administrator, and the Texas Liquor Control Board, as the Board.
The trial court rendered declaratory judgment that the interpretation of Article 666, Section 4, Texas Penal Code, by the Administrator, as evidenced by his letter dated June 11, 1956, is invalid, incorrect and contrary to the provisions of the statute, and that the act by a package store permittee of giving premium stamps to retail purchasers or consumers of alcoholic beverages as an inducement for the purchase of such alcoholic beverages is lawful under the provisions of Articles 666 and 667 of the Texas Penal Code.
The trial court decreed and declared that the Texas Liquor Control Board does not have the power or authority under the provisions of Articles 666 and 667 of the Texas Penal Code, to promulgate a valid rule or regulation prohibiting a package store permittee from giving premium stamps to retail purchasers or consumers as an inducement for the purchase of alcoholic beverages.
The trial court further rendered judgment perpetually enjoining appellants, their agents, inspectors and employees, and anyone else acting in concert with them or any of them, from enforcing or attempting to enforce Articles 666 and 667, of the Texas Penal Code, as interpreted by the Administrator in his letter of June 11, 1956, or any order or ruling that appellees can not sell or otherwise distribute such premium stamps with sales of alcoholic beverages; from in any way interfering with the sale, gift or distribution of such stamps; from cancelling, suspending or taking any administrative action against Atomic Stores or its permits or licenses because of its sale or other use of such stamps; from interfering with or attempting to interfere with the contract between appellees or any contract held by appellee Stamp Company, and from seizing or taking possession of any stamps of appellees or either of them.
Appellants predicate their appeal from this judgment upon eight points. The first five points complain of various phases of the injunction granted. The sixth and seventh points complain of the declaratory judgment rendered. The eighth point complains that the court erred in refusing to dismiss the Stamp Company.
The following provisions of the Texas Liquor Control Act, Art. 666, Vernon's Texas Penal Code, are pertinent to the decision of the case:
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