Approximately 17,946 Containers of Alcoholic Beverages v. State

316 S.W.2d 433, 1958 Tex. App. LEXIS 2225
CourtCourt of Appeals of Texas
DecidedSeptember 22, 1958
DocketNo. 6799
StatusPublished
Cited by1 cases

This text of 316 S.W.2d 433 (Approximately 17,946 Containers of Alcoholic Beverages v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Approximately 17,946 Containers of Alcoholic Beverages v. State, 316 S.W.2d 433, 1958 Tex. App. LEXIS 2225 (Tex. Ct. App. 1958).

Opinion

NORTHCUTT, Justice.

The State of Texas by and through the Texas Liquor Control Board and its administrator as plaintiffs, represented by the Attorney General of Texas and by the District Attorney of Potter County, Texas, brought this action complaining of approximately 17,946 containers of alcoholic beverages alleging that the District Supervisor for the Texas Liquor Control Board had seized approximately 17,946 containers of alcoholic beverages, and designating such beverages, and that such beverages had been, just prior to such seizure, illegally possessed in the State of Texas and further alleging such alcoholic beverages complained of had been stored by the Texas Liquor Board in the State of Texas in premises provided for such purposes. It is the contention of the State of Texas that Sherrill W. Raley did transport such beverages in violation of Section 23¼, Sub-Section (e) and (f) and (g) of Article 2 of the Liquor Control Act, same being Article 667-23¾4 of Vernon’s Texas Penal Code, and that the same was illicit beverages as the term is defined by the Texas Liquor Control Act and sought judgment forfeiting to the State of Texas the said alcoholic beverages and ordering the same disposed of as provided by the Texas Liquor Control Act, and for general relief.

Sherrill W. Raley d/b/a Raley Distributing Company intervened, contending he [434]*434was the owner of the approximately 17,946 containers of alcoholic beverages and that the same was not illicit beverage because he had not transported such alcoholic beverages in violation of Article 667-2314 °f the Vernon’s Texas Penal Code. It is the contention of the intervenor that it was not unlawful for him to import such alcoholic beverages for himself and his use as a general distributor in the State of Texas while holding such Distributor’s License because the expressed and evident intent of the Legislator in enacting the pertinent provisions of the Texas Liquor Control Act intended that the holder of a General Distributor’s License could import into the State of Texas his own beer for his own purposes as a General Distributor without the necessity of complying with the above mentioned sections. It is further the contention of the intervenor that the beverages in question were not improperly imported into this state by him because he held a General Distributor’s License, and because of the terms of Article 667-3a and 667-29 it was not necessary for him to have Importer’s License, and further, that the Court erred in declaring forfeiture for alleged violations of Article 667-23|4 of the Penal Code because such Article is in irreconcilable conflict with Article 667-3a and Article 667-29 of the Penal Code and therefore void and unconstitutional because contrary to Section 10, Article 1, Texas Constitution, Vernon’s Ann.St., and Articles 1, 6 and 8 of the Texas Penal Code.

The case was submitted to the court without a jury upon stipulation of facts in effect as follows:

“On October 14, 1957, Sherrill W. Raley was operating under and by virtue of General Distributor’s License No. BB16220, issued to Raley Distributing Company on June 25, 1957, by the Texas Liquor Control Board for the premises located at 100 North Buchanan Street, Amarillo, Potter County, Texas. On this date Mr. Raley dispatched a truck to the Griesedieck Bros. Brewing Company in St. Louis, Missouri, to pick up 1,077 cases of alcoholic beverages, to-wit beer, such quantities of alcoholic beverages being much in excess of 288 fluid ounces. On the occasion in question appellant did not have either an Importer’s License or an Importer’s Carrier’s License as provided for under the provisions of the Texas Liquor Control Act.

“The truck so dispatched was leased under written contract by appellant from Charles Gibbs, and the driver of said truck, J. W. Newton, was on this occasion in the employment of Sherrill W. Raley, dba Raley Distributing Company.

“Appellant paid Griesedieck Bros. Brewing Co. for said beer by cashier’s check pri- or to the delivery of the beer to the driver of the truck. The brewing company billed such beer to the High Plains Distributor, Amarillo, Texas, the latter on the date in question being the holder of a General Distributor’s License and an Importer’s License duly issued by the Texas Liquor Control Board. Upon the arrival of said beer in Amarillo High Plains Distributor billed the beer to Mr. Raley.

“On October 16, 1957, the beer arrived via the aforementioned truck in Amarillo and was carried to High Plains Distributor, which establishment was closed, whereupon Mr. Newton telephoned appellant, and in accordance with directions then given him by appellant delivered and unloaded the beer here involved at Raley Distributing Company, 100 North Buchanan Street, Amarillo, Texas.

On November 21, 1957, an inspector of the Texas Liquor Control Board placed under technical seizure the beer here in question, and on December 4, 1957, said inspector physically seized said beer.”

The court held the described alcoholic beverages were illicit beverages as that term is defined by the Texas Liquor Control Act and as such was subject to forfeiture in that said beer was imported into the State of Texas in violation of Section 23J4 paragraph (e), (f) and (g) of Article 667 Vernon’s Penal Code and ordered said bev[435]*435erages forfeited as provided by the Texas Liquor Control Act. From this judgment Sherrill W. Raley perfected this appeal.

Although appellant assigns twenty-five points of error the appeal is presented upon three main issues. The State of Texas sought to forfeit the beer in question because appellant imported the beer into Texas without owning an Importer’s License. The appellant contended that he could import this beer without such license because he was the holder of a General Distributor’s License. The State of Texas pleaded that Sherrill W. Raley did transport the beer in question in violation of Sub-Sections (e), (f) and (g) of Article 667-2314 Vernon’s Texas Penal Code, and that said alcoholic beverages were transported in violation of the laws of the State of Texas in such manner and under such circumstances that the same was illicit beverages as that term is defined by the Texas Liquor Control Act, and that the same was subject to seizure and forfeiture by the State of Texas under the provisions of the Texas Liquor Control Act.

Under the agreed statement of facts, if the interpretation placed upon these articles as contended by the State of Texas is correct, there is no question but what the appellant has violated the law and the judgment of the trial court is correct, since it is admitted he transported the beer in excessive amounts into the State of Texas. Sub-Sections (e), (f) and (g) are as follows :

“(e). It shall be unlawful for any Importer, unless he be the holder of an Importer’s Carrier’s License, to import beer into this State except by steam, electric and motor power railway carriers, and common carrier motor carriers operating under certificates of convenience and necessity issued by the Railroad Commission of Texas, or such certificates issued by the Interstate Commerce Commission. Any such carrier shall be the holder of a Carrier’s Permit provided for in Section 15(12), Article I of the Act, and shall comply with all the requirements thereof as in the transportation of liquor. It shall be unlawful for any carrier enumerated herein to transport beer into this State unless the same shall be consigned to an Importer.
“(f).

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Related

High Plains Distributor v. Texas Liquor Control Board
318 S.W.2d 681 (Court of Appeals of Texas, 1958)

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Bluebook (online)
316 S.W.2d 433, 1958 Tex. App. LEXIS 2225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/approximately-17946-containers-of-alcoholic-beverages-v-state-texapp-1958.