Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 1950
Status
Published
On the bench
Price Daniel
Cited by
0 cases
Authority
More cited than 3.5%

The opinion

E A-mro ENERAL

TEXAS

December 7, 1950

Hon. Coke R. Stevenson, Jr,

Administrator

Texas Liquor Control Board

Austin, Texas Opinion Ro. V-1126.

Ret Constltutionalltg of

Section 37 of Article

666-17, Vernon's Penal

Code, providing for

restrictions on the

extension of credit

to retail liquor

dealers by whole-

Dear Mr. Stevenson: salers.

Your letter requesting the opinion of this of-

fice is quoted as follows:

"Because the question has been raised

a number of times as to the constitutlonal-

itg of the provisions of Section 17(37) of

Article I of the Texas Liquor Control Act,

I am herewith requesting your honored opin-

ion regarding same as set out below:

"S(37). It shall be unlawful for any

Wholesaler, Class B Wholesaler, Class A

Winery or Wine Bottlerto sell any alcoholic

beverage, nor shall any Package Store Per-

mittee, Wine Only Package Store Permittee, or

other retailer purchase any alcoholic bever-

age, except for cash OP on terms requiring

payment by the purchaser as follows: On pur-

chases made from the first to fifteenth day

Inclusive of each calender month, payment

must be made on or before the twenty-fifth

day of the same calendar month; and, on pur-

chases made from the sixteenth to the last

day inclusive of each calendar month, pay-

ment must be made on or before the tenth day

of the succeeding calendar month. Every de-

livery of alcoholic beverage must be accom-

panied by an Invoice of sale giving the date

of purchase of such alcoholic beverage. In

Hon, Coke R. Stevenson, JP~, page 2 (V-1126)

the event any Package Store PermIttee, Wine

Only Package Store Permfttee or other retail

dealer becomes delinquent in the payment of

any account due for alcoholic beverages pur-

chased, (that is, If he fails to make full

payment on OP before the date hereinbefore

provided] then ft shall be the duty of the

Wholesaler, Class B Wholesaler, Class A

Winery or Wine Bottler to report that fact

immediately to the Board or Administrator

in writing. Any Package Store permittee,

Wine Only Package Store Permittee or other

retail dealer who becomes delinquent shall

not be permitted to purchase alcoholic bev-

erages from any Wholesaler, Class B Whole-

saler, Class A, Winery OP Wine Bottler until

said delinquent account is paid In full,

and the delinquent account shall be cleared

from the records of the Board before any

Wholesaler, Class B Wholesaler, Class A

Winery or Wine Bottler will be permitted

to sell alcoholic beverages to him. Any

Wholesaler, Class B Wholesaler, Class A

Winery OP Wine Bottler who accepts post-

%ated checks, notes OP memoran%a OP who

participates In any scheme, trick, OP de-

vice to assist any Package Store Permlttee,

Wine Only Package Store PeMttee or other

retail dealer in the violation of this Sec-

tion shall llkewfse be guilty of a violation

of this Section, The Board shall have the

power and it shall be Its duty to adopt

rules and regulations giving full force and

effect to this SectionOD*

The liquor business, unlike most private enter-

prises> is regulated by the various States under their

police powers. Article 666-2, Vernonus Penal Code, (Art.

I, Texas Liquor Control Act) provi%es that "This entire

Act shall be deemed an exercise of the police power of

the State for the protection of the welfare, health,

peace, temperance, and safety of the people of the State,

an% all its provisions shall be liberally construed for

the accomplishment of that purposee* A person may not

engage in the liquor business as a matter of right but

only when permIssion to do so Is granted by the State.

Permission when granted, is in the nature of a revocable

personal privilege, As provided in Section 13(b) of Artl-

cle I of the Texas Lfquor Control Act (Art. 666-13, V.P.C.):

. -

Hon. Coke R. Stevenson, Jr., page 3 (V-1126)

'Any permit or license issue% under the

terms of either Article I or Article II of

this Act shall be purely a personal privilege,

revocable in the manner an% for the causes

herein state%, subject to appeal as hereln-

after provided, an% shall not constitute prop-

erty, a D 0n

In Texas Lhuor Control Boar% v. O'Fallon, 189

S.W.2% 885, 887 (Tex.Civ,App. 1945), the court saib:

'A permit, or license, to sell liquor Is

a mere personal privilege, under the terms of

the act Itself; all such permits are revocable

for causes therein state%, subject to appeal

as provided by the act, Such permit, or ll-

cerise,does not constitute property. The ac-

ceptance constitutes an expressed agreement

and consent on the part of the permlttee, 01:

licensee, that the Boar% or any of Its au-

thorized representatives, or agents, may,,per-

form any duty therein Imposed upon them.

In Texas Liquor Control Board v. Warfield, 122

S.W.2% 669, 670 (Tex.Clv.App. 1938), the court said:

"A package store permit to purchase

specified liquor from designated parties and

to sell same under the conditions an% in the

manner prescribed In the Act 1s neither a

contract nor a right of property in the sense

in which those terms are use% in our Constitu-

tion, It Is no more than a temporary license

to do that which would otherwise be unlawful

an% may be revoke% by the authorized agent of

the state whenever It is ascertained that the

law has been violate%."

A State has the power to regulate liquor traf-

fic and may go so far as to prohibit It. State Boar% of

Equalization of California v. Youngus Market Co., 299 U.S.

59 (1936); Mahoney, Liquor Control Commissioner,v. Joseph

Trlner Carp,, 304 US, 401 (1938). In the Young's Market

case the court held that a provision of the California law

imposing a fee of $500 for the privilege of importing beer

Into the State was not discriminatory against a wholesaler

of Imported beer, The court said at page 63:

*It might permit the manufacutre and

sale of beer, while prohibiting bard liquors

Ron.,Coke R, Steven.son,Jr.,s page 4 (V-11269

absolutely, If It may permit the domestic

manufacture of beep an% exclude all made

without the State, may It not, Instead of

absolute exclusion, subject the foreign

article to a heavy importation fee? Mope-

over, in the light of history, we cannot

say that the exaction of a high license

fee for importation may not, like the lm-

position of the high license fees exacted

for the privilege of selling at retail,

serve as an aid in policing the liquor

traffic *”

In discussing a constitutional question in the

Mahoney case, the Supreme Court said at page 403:

“The sole contention of Joseph Trlner

Corporatfon is that the statute violate%

the equal.protection clause. The state of-

ficials insist that the provision of the

statute is a reasonable regulation of the

liquor traffic; an% also, that since the

adoption of the Twenty-first Amendment, the

equal protection clause is not applicable

to imported Intoxicating liquor- As we are

of opi,nionthat the latter contention is

sound, we shall not discuss whether the stat-

utory provision Is 8~reasonable regulation of

the Liquor traffic II

*

In Cartlldge v, Ralneg 168 F-2% 841, 843 (C-C.

A, 5th. 19481. the Court %fscuss~% the reasonableness of

the-provislon’ln the Texas Liquor Control Act which per-

mltsonly licensed common carriers to engage in the ln-

terstate transportation of liquor. The court said:

‘The effect of the Texas Liquor Control

Act 1s to confine the business of transport-

ing intoxicating liquors through the state

to those who are licensed as common carriers.

The regulation is reasonable, and appropriate

to the en% in view, an% we are not authorized

to hold it invalid.*

It is our opinlon that the provision of the

statute in uestion is not unreasonable. The provision

(Section 17%37% of Article I of the Liquor Control Act)

is one for the purpose of inaintafningthe independence

of the wholesale and retail Levels of the liquor industry

Ron. Coke R. Stevenson, Jr., Page 5 (V-1126)

in Texas. As said In Texas Liquor Control Boar% v. Con-

tinental Distillinn ompa y 1 SW 1 1014 (Tex.

Clv.App. 1947, appea? %lS~.c33~g~~~.o~~7,0~'~~7):

"The Legislature, in enacting the Texas

Liquor Law (Art. 666 P.C.), expressly deter-

mined that the liquor traffic In this State

~0~1% be best controlled by keeping the vari-

OUS k?elS Of the 1iCJUOP in%UStPy independent

of each other, 0 . .

Statutes of other States provide for restrlc- ,

tlons on the extension of credit by wholesalers to re-

tailers, as does Section 37 of Article 666-17, V.P.C.

These provisions have been upheld by the courts of such

States.

In James J. Sullivan. Inc. v. Cann's Cabins,

Inc., 371 3 2 W S 1 41 hS

St zf"&~~a~huse&s7uphe?~<h~p~on&&~o&l~~?~

provisions of a Massachusetts statute which made It un-

lawful for any licensee to lend or borrow money or re-

ceive credit, directly or Indirectly, to or from any

manufacturer, wholesaler or importer of alcoholic bever-

ages, and for any such manufacturer, wholesaler or im-

porter to lend money OP otherwise extend credit, except

In the usual course of business an% for a periodnot ex-

ceeding ninety days, directly or indirectly, to any such

licensee or to acquire, retain or own, directly or ln-

directly, any interest in the business of any licnesee.

The court said:

"The prohibition of the statute is not

limited by the nature of the thing for which

payment Is to be made. It is not llmite% to

cre%lt for liquors sol%. Its purpose appears

to have been to avoid the evils believe% to

result from the control of retail liquor deal-

ers by manufacturers, wholesalers, OP importers

through the power of credit. Those evils do

not as a rule depen% upon the nature of the

consi%eration out of which the cre%it arose.

They deeend upon the power of creditor over

debtor.

In Sepe v. Daneker, 68 A.2% 101, 102-105 (R.I.

Sup. 1949), the Supreme Court of Rhode Island ha% before

it practically the same question that we are now discuss-

ing* The court upbel% the constitutionality of the pro-

vlons of the rules of the Liquor Control Adminlstratlon

HOG. Coke R, Stevenson, Jr,, page 6 (y-1126)

of the State of Rhode Island. We quote the following

from the opinion of the courts

"The pertinent portions of Pules 53 and

54 as set out in the statement of facts are

as follows2 O53* No alcoholic beverages

shall be sold by any manufacturer OF whole-

saleP to any retailer, nap shall any retail-

er purchase any alcoholic beverages except

fop cash OP on terms reqtiplng payment by

the puPchaser within tl-$Ptydays from date

of dellvePy. * * * Ho manufacturer or whole-

sales shall sell, except for cash, any alco-

holic beverages to any retailer with knowledge

that such retailer Is in appears for the pay-

ment of alcoholic beverages, as provided by

this Pule; O D o 54. Written notice shall be

given by the manufacturer or wholesaler by

reglsteped mall to each licensee in default of

payment within five (5) days after the default

OCCUPS9 containing the date of delivery, the

amount of Indebtedness in default, and the

following statements Rule Ho. 53 of the Llq-

uor ContrPolAdmInIstratIon prohibits you from

accepting dellvePy of any alcoholic beverages

from any manufacturer OP wholesaler except for

cash, until you have paid in full, the amount

of the default shown in the notice. Rachman-

ufacturer and wholesaler shall notify the

Liquor Control Administration of each,default

within five days, and shall file with him a

copy of each written notIce required to be

mailed to the licensee within five days after

default OCCUPS.~ O e o

"In support of his principal contentions

on the issue of the constitutionality and in-

validity of the rules the complainant relies

on the law as set out in cases, both federal

and state, of which Lawton v. Steele, 152 U.S.

133, 14 s. ct. 499, 38 L, Ed, 385, is an ex-

ample. In so doing he has overlooked or his-

regarded the natme of the business in which

he himself is engaged. The cases above re-

ferred to, in theiP general references to the

public interest and to arbitpary and unPeason-

able interference by way of unnecessary re-

strictions on private business, will be found

on examination to apply to the oPdinapy pPi-

vate enterpplses not requiring a license.

Hon. Coke R. Stevenson, Jr., page 7 (V-1126)

"The complainant, however, is engaged

in the business of selling at petal1 alcoholic

beverages under a duly granted license. That

license he holds subject to the laws of this

state and to the rules and regulations of the

liquor control admlniatratlon. It has been

decided that, generally speaking, a licensee

takes his license subject to such conditions

as the legislature sees fit to impose. Child

v, Bemus, 17 R-1. 230, 21 A. 539, 12 L.R.A.

Further in Tisdall Co. v. Board of Alder-

% 57 R,I. 96 at page 103 188 A. 648 at

pagi 652, this gourt state&' 'But it is'well

settled in this State and elsewhere that the

business of the sale of lntoxicatin liquor

is so clearly and completely subjec& to exer-

cise of the police power of the State that it

may even be entirely prohibited by the State

* * * OP It may be permitted subject to such

restrictions and burdens, however great, as.

the State Legislature may deem it advisable

to lmpose,D e 0 D sit has been universally

held that such regulation is especially with-

in the province of such police power, which

even extends to the prohibition of such sale;

and the courts have always been particularly

liberal in sustaining the constitutionality

of such regulation." It also is settled in

this state that a liquor license is not a

property right. Casala v. MO, 65 R.I. 96,

13 A.28 693.

. a 0 . 0 Keeping in mind the nature of

the business in which the complainant is en-

gaged and the llmitatlons imposed thereon by

established law we find that his contention

is not sound. It appears to be his position

in substance that rules 53 and 54 are not in

the public interest generally and that they

constitute an arbitrary deprivation of his

property rights contrary to the due process

clause of section 1 of Article XIV of the

amendments to the constitution of the United

States.

"However, it Is well settled that the

privileges or immunities PePerred to in that

section do not include the business of selling

intoxicating liquor. In Crowleg v. Christen-

sen, 137 U.S. 86, at page 91, 11 S.Ct. 13, at

Hon. !TokeR. .Stevenson,JP,, pa&e 8 (V-112,6)

page 15, '34L,Ed, 520, the cou??t,in discussing

the nature of that business, said: 'The manner

and extent of regulation rest in the discretion

of the SovezninS authority. 0 e m It is a mat-

ter of 1eSfslative wPl1 onl.y.D See also Fdarte-

meyer ‘v.Iowa, 18 Wall* 129, 85 U,S. 129, 21 L.

Ed, 929; State v, Almy, 32 R.I. 415, 79 A. 952.

The amendment though broad and comprehensive was

not.designed to interfere with the proper ex-

excise of the police power by the State. Bar-

bier v. Connolly, 113 U.S, 27, 5 Sect. 357, 28

L,Ed. 9230 We have hereinbefore Feferred to

the fact that there Is no property right in a

license 0 Fu&hep the Fules in question

liqu~ozp

apply alike to all zetai licensees and are

not discriminatory.

In view of the above it is our opinion that

Sec.';ion

37 of Article .%s-17, V.P,C., providing for Fe-

zt;;ict:ions

on the extension of credit to retail liquor

dealer? by wholesalers, is constitutional.

Section 37 of Article 555-17, V,P.C.

(Sec.17(37),9Art. I, Texas Liquor Control

Act), providing for restrictions on the ex-

tenston of cmdft to Petail liquor des.lers

by whol~esalers,is constitutional.

i!

PPROVED: Yours very truly,

Net McDaniel PRICE DANIEL

State ."rff'airs

Division Attorney General

fvepett Hutchinson

Executive AssIstant

Charles D. Mathews

First Assistant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.