Texas Liquor Control Board v. Canyon Creek Land Corp.

443 S.W.2d 308, 1969 Tex. App. LEXIS 2463
CourtCourt of Appeals of Texas
DecidedJuly 2, 1969
DocketNo. 11685
StatusPublished
Cited by5 cases

This text of 443 S.W.2d 308 (Texas Liquor Control Board v. Canyon Creek Land Corp.) 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
Texas Liquor Control Board v. Canyon Creek Land Corp., 443 S.W.2d 308, 1969 Tex. App. LEXIS 2463 (Tex. Ct. App. 1969).

Opinion

HUGHES, Justice.

Canyon Creek Land Corporation, doing business under the name of Canyon Creek Country Club, its officers and members sued 1 the Texas Liquor Control Board alleging that it operates a country club in a “dry” area located in Collin County; that it holds a valid private club permit issued by the Board pursuant to the provisions of Art. 666-15(e), Vernon’s Ann.Tex.P.C., and its members store alcoholic beverages at the Club for consumption by the member and his guests under the “Locker System” prescribed in Art. 666-15 (e) Sec. 1, subd. 1 (b); that each member of the Club purchases his alcoholic beverages in wet areas of the State and transports them to his locker at the club through an agent, principally the manager of the Club, authorized thereto in writing by the member; that such liquor when so purchased and transported is stored at the Club in the possession of the member who owns it. The Club alleges that the Board has taken the position that this practice is illegal and has implemented its position by charging the Club with a violation of the law because of such practice and has held a hearing to determine whether, because of such practice, its permit should be cancelled or suspended. The Club alleged the legality of the method practiced by its members and that irreparable damage will be sustained by the Club unless the Board was restrained from cancelling its permit on these grounds, and that its remedy at law was inadequate. It prayed for injunctive relief and for a declaratory judgment.

The answer of the Board was, in substance, that this was a suit brought against the State without its consent, that the Board was vested with exclusive jurisdiction of the subject matter of this suit, that the suit was premature, and that the Club had an adequate remedy at law through the administrative proceedings.

The trial court, after a hearing, granted a temporary injunction enjoining the Board, its members, agents and employees from “pursuing a policy that members of a private ‘locker system’ Club situated in a ‘dry’ area * * * cannot employ a duly appointed agent to purchase alcoholic beverages on behalf of the members in a ‘wet’ area where the sale thereof is legal and transport the same on the members’ behalf to the premises of said Club where the possession thereof is legal.” The Board was also enjoined from cancelling or suspending the license or permit of the Club [310]*310on the basis of a violation of such policy, but the Board was not otherwise enjoined.

Appellant’s first point is that this is a suit against the State without its consent to be sueid and that the parties and the subject matter of this suit were before another forum having exclusive original jurisdiction of this controversy. As a factual basis for this point, appellant quotes from appellees’ pleading, the substance of which we have stated.

If, as appellees contend, appellant is acting beyond the scope of its statutory authority, a matter we will determine infra, then this is not a suit against the State such as to require its consent. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837 (1945), Texas Liquor Control Board v. Diners’ Club, Inc., 347 S.W.2d 763, Tex.Civ.App., Austin, writ ref. n. r. e. (1961); Allen v. State, 410 S.W.2d 52, Tex.Civ.App., Houston (1st), no writ (1966); Texas Highway Commission v. Texas Association of Steel Importers, Inc., 372 S.W.2d 525 (Tex.Sup.1963).

As will be shown infra the proceedings before the Board do not involve the same facts as are here presented. It follows that there are no administrative proceedings pending which might hinder the court in this case.

Appellant’s second point is that the trial court erred in enjoining it from enforcing the law, which it says prohibits an agent for a club member from transporting liquor for consumption by his principal, especially since this question is not before the Board in the proceedings before it which relate to Appellee Club.

Appellant directs our attention, under subsequent points, that the charge against the Club before the Board was that certain individuals as agents for the Club unlawfully transported liquor and that appellees commenced using the agency agreement involved herein after the Board’s controversy with the Club arose.

This is correct; however, appellees alleged that the members of the Club buy and transport liquor, through agents, to the Club for consumption by the individual members and their guests, and that the position of the Board is that such arrangement is illegal and that the Board intends to implement its views to the irreparable damage of appellees. The evidence sustains these allegations.2 The injunction which we are reviewing does not prohibit the Board from cancelling the license of the Club on the ground that agents for the Club have transported liquor for its members.

[311]*311The basic question, the legality of the arrangement by which Club members appoint agents to buy and transport liquor, as above detailed, is argued under this point and we will dispose of it here. We believe the answer is found in the Liquor Control Act.

Sec. (1) of Art. 666-23a provides:

“(1) It is provided that any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal.”

Art. 666-3a of the Act provides, “The following definitions of words and terms shall apply as used in this Act: * * *

“(6) ‘Person’ shall mean and refer to any natural person or association of natural persons, trustee, receiver, partnership, corporation, organization, or the manager, agent, servant, or employee of any of them.”

The Board cites Sub-sections 1(b) of Sec. 1, Art. 666-15(e) of the Act which reads:

“(b) ‘Locker System’ shall mean that system of alcoholic beverages storage whereby the club rents to its members lockers wherein the member may store alcoholic beverages for consumption by himself or his guests. All such alcoholic beverages so stored under the ‘locker system’ shall be purchased and owned by the member as an individual.”

The Board says that this provision “does not contain the word ‘person’ and hence the statutory definition of ‘person’ is not relevant.”

This contention is frivolous. The statute refers to a member as an individual. An individual is a person. If authority for this statement is needed, reference is made to all dictionaries.

The Board cites us to a withdrawn opinion by our Court of Criminal Appeals in Mayes v. State, 214 S.W.2d 791 (1948) as authority for holding that Sec. (1) of Art. 666-23a does not mean what it plainly provides. We cannot consider a withdrawn opinion as authority. Park v. Essa Texas Corp., 158 Tex. 269, 311 S.W.2d 228 (1958).

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Bluebook (online)
443 S.W.2d 308, 1969 Tex. App. LEXIS 2463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-liquor-control-board-v-canyon-creek-land-corp-texapp-1969.