Texas Liquor Control Board v. Lanza

• Decision Date: 20 May 1939
• Docket Number: No. 12853.,12853.
• Citation: 129 S.W.2d 1153
• Parties: TEXAS LIQUOR CONTROL BOARD v. LANZA.
• Court: Texas Court of Appeals

Page 1153

129 S.W.2d 1153

TEXAS LIQUOR CONTROL BOARD v. LANZA.

No. 12853.

Court of Civil Appeals of Texas. Dallas.

May 20, 1939.

Rehearing Denied June 17, 1939.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by Barney Lanza against the Texas Liquor Control Board to review order of defendant canceling plaintiff's permit to operate a package store. From a judgment vacating defendant's order, the defendant appeals.

Reversed and rendered.

Gerald C. Mann, Atty. Gen., and M. C. Martin, Pirtle Watts, and George W. Barcus, Assts. Atty. Gen., for appellant.

Hughes & Monroe and Angelo Piranio, all of Dallas, for appellee.

YOUNG, Justice.

On August 31, 1938, appellee obtained Permit No. 1939 to operate a package store at 2710 Elm Street, Dallas, as authorized by Texas Liquor Control Act, Vernon's Ann.P.C. art. 666—1 et seq.; but afterwards, upon due notice and hearing, the Administrator of appellant Board canceled said permit, the date being January 23, 1939. Suit was then filed by Lanza, as plaintiff, in a Dallas County district court, for review of such cancellation order, and, upon a later trial, same was vacated, with the effect of reinstating the original permit; and from this final order of the trial court, the Texas Liquor Control Board has appealed.

It is first contended by appellee that this Court is without jurisdiction to entertain an appeal of this character, brought here at the instance of the Board, Art. 666—14, P.C., Vernon's Ann.P.C. art. 666—14, not providing therefor. In Texas Liquor Control Board v. Warfield, Tex. Civ.App., 111 S.W.2d 862, the right of appellant to appeal from an adverse judgment of the district court was similarly challenged and the contention was overruled, following a discussion and construction of the entire Act. The particular Article (666—14) does not expressly deny this right to the Board, if it be the aggrieved party, and the general rule is that the right of appeal is reciprocal, as respecting persons similarly situated. And it is not material that the subject matter involved (the permit) is not property (Art. 666—13) because, under Art. 2249, R.S., Vernon's Ann.Civ.St. art. 2249, appeals may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, which is the nature of the litigation here.

The present record includes a statement of facts, which, in turn, embraces all the facts adduced before Bert Ford, appellant's Administrator, at the hearing when the permit was canceled. Additional to this, and following the court trial, defendant Board requested, and the Judge made findings of fact and of law, in substance that, although there was evidence of liquor sales, there was no evidence to show that the same were made by plaintiff Lanza on or from the premises located at 2710 Elm Street, Dallas; concluding, as a matter of law, that the Liquor Control Act was not violated by plaintiff, and that the Board did not have sufficient evidence before it to authorize a cancellation of plaintiff's license, and, as a consequence, appellant's action was both arbitrary and capricious. Findings of the trial court must not be disturbed when based on evidence—though conflicting; but findings not supported by the statement of facts are not binding upon the Appellate Court. Whittle & Kavanaugh's Third Co. v. Reynolds, Tex.Civ.App., 69 S.W.2d 181. The rule just stated is particularly applicable to the case at bar, as, otherwise, the Board would be denied a review on the sole question before the District Court; i. e.,...