Petition for Writ of Certiorari — Texas Liquor Control Board v. Ammex Warehouse Co.

Supreme Court brief1966

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INDEX OF CONTENTS

Page

p EE IO EET LT Lee TO FIST cp TE TEE i

ee I oS. so nats be cae eee ees ii

NS os ee ee eee ee ae 1

ee es ca rr ica ics ath 2

“ee eae ne 8

I. Chronology ce ois Sh I Ria gaa ak a ee | oe 2

II. Statutory Provision Conferring Jurisdiction...... 3

Questions Presented for Review....................... 3

The Constitutional and Statutory Provisions Involved..... 6

I, ,The Texas Statute in Question.................. 6

II. Provisions Relied Upon by Petitioners........... 10

III. Provisions Upon the Basis of Which Texas Courts -

Ruled the Statute in Question Unconstitutional... 12

IV. Other Statutes and Regulations Involved......... 13

a Or TE CD. enc ai noo wil es own AE 14

Reasons Relied on For Allowance of Writ.............. 28

PD AE GI a a. since wiiinn sane nwassvdeeel 37

Certificate of Serwies: ... 02.005 Les saad. cece 38

Appendix (Separately Indexed)........................ 39

We ick iA IRIE 0 see et

INDEX OF AUTHORITIES

Cases

¢

Ammex Warehouse Company of San Ysidro,

Inc. v. Department of Alcoholic Beverage 19,21, 22, 28,

Control for the State of California, 224 F. 25, 27, 28, 31,

Supp. 546 (D.C., S.D.Cal., 1968) ..-........ $2, 33

Collins v. Yosemite Park Company, 304 USS.

518, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938)... 32

Department of Alcoholic Beverage Control for

the State of California, et al. v. Ammex

Warehouse Company of Ysidro, Inc., 378 5, 13, 19, 21,

U.S. 124, 84 S.Ct. 1657, 12'L.Ed.2d 743..... 31, 32

Department.of Revenue v. James B. Beam Dis-

tilling Company, 377 U.S. 341, 84 S.Ct. 1247,

12 L.Ed. 2d 862 (1964).................. 31

Hostetter v. Idlewild Bon-Voyage Liquor Cor- 5

poration, 377 U.S. 324, 84 S.Ct. 1293, 12 21 25

eS rr re ree > 31, 33

Idlewild Bon-Voyage Liquor Corporation v. /

Epstein, 212 F.Supp. 376 (D.C., S.D.N.Y., /

ae ASSURE Rater 2k SG LS mln SRI Satcher a 15, 16, 20, 29, 31

J. F. Fitzgerald Construction Co. v. Pedersen,

824 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316

Re ee teehee Ce ee 34

Michigan-Wisconsin Pipeline Co. v. Calvert,

347 U.S. 157, 74 S.Ct. 396, 98 LEd. 588

& Stahl, 377 US. 184, 84 S.Ct. 1142, 12

LEd2d 752 (1964)........... 0000... eee. 84

“4

INDEX OF AUTHORITIES (Con’d)

hal)

Fee Page

State of Alaska v. Artic Maid, et-al., 366 U.S.

199, 81 S.Ct. 929, 6\L. 227 (1961) .. 34

Texas Liquor Coptrl Baar al, Appellants

v. Ammex W. pany, Inc., et al.,

Appellees, 384 S.W. 2d A Rae 2

eas }

Ziffrin v. Reeves, 308 U.S. 182, 60 S.Ct. 163,

oe See eer 31

= Constitutional Provisions

Constitution of the United States, Article I, 4,12, 13,17,

Section 8, Clause 2 and3................. 20, 33, 34

Constitution of the United States, Article VI, 4, 13, 18,

sii RIE I ete aaa ere ote ee 20, 34

Constitution of the United States, Twenty-first 3, 10, 18, 19,

Amendment, Section | 2 ei ey 20, 32, 33

Federal Statutes

ee I I ni ec ere ae tans 14, 23, 24

19 U.S.C.A. 1555......... Pee ee ane reer ee oe 4, 13, 23

Hy ME I on oo cid dime wan cen akdn 4, 5, 18, 23, 24

e'

a ee ne ee 3, 10, 19

EE SE ae eT ee 3, 11, 19

gin os Re Rf a er teat 3, 11, 19

CNS 65 5.206455 8c USé ri eres - 4,11

ay. Ws I i os 5 eu ab ccc uke nea ewes 3

49 U.S.C.A. 1002......... Bich Mee det 14

INDEX OF AUTHORITIES (Con’d)

Page

Federal Regulations

Title 19, Code of Federal Regulations, Customs

Regulations, Part 18, Section 18.1, CR 363. . 14

Title 19, Code of Federal Regulations, Customs

Regulations, Part 19, Section 19.1, CR 379- ™

Title 19, Code of Federal Regulations, Customs

Regulations, Part 19, Section 19.11, CR 386-

ES Se a oy oe ee ee 13, 23, 24

Title 19, Code of Federal Regulations, Customs

Regulations, Part 19, Section 19.13, CR 387-

Ree BOS wre eae ber i 14, 23, 24

Title 26, Code of Federal Regulations, Customs

Regulations, Part 252, Subpart B, § 252.11. . 14, 27

Title 26, Code of Federal Regulations, Customs

Regulations, Part 252, Subpart B, § 252.40. . 14, 27

Texas Statutes

Article 666-15, V.A.P.C. ...... GbE ess dias 15

Article 666-15(6), V-A.P.C. ................. 15

Article 667-15(7b), V.-A.P.C. ............... 4, 5, 6, 15, 18, 30

Article 666-288, VAPC.................... 15

”

a

NO. ————

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

Texas Liquor ConTROL BOARD, ET AL.,

Petitioners,

Vv.

AMMEX WAREHOUSE CoMPANY, INC.; ET AL.,

Respondents.

From the

Court of Civil Appeals for

The Third Supreme Judicial District of Texas

At Austin

PETITION FOR CERTIORARI

TO THE HONORABLE SUPREME COURT OF

THE UNITED STATES:

Petitioners, the Texas Liquor Control Board and

Coke R. Stevenson, Jr., Administrator of the Texas

Liquor Control Act, respectfully request that this

Court grant certiorari to review the judgment of the

Court of Civil Appeals for the Third Supreme Judi-

cial District of Texas at Austin, affirming the judg-

ment of the 53rd District Court of Travis County,

Texas, which held to be unconstitutional a statute

amending the Texas Liquor Control Act.

par

THE OPINIONS BELOW

The opinion of the Court of Civil Appeals for the

Third Supreme Judicial District of Texas at Austin

‘is styled Texas Liquor Control Board, et al., Appel-

lants v. Ammex Warehouse Company, Inc., et al., Ap-

pellees, and is reported, 384 S.W.2d 768, and is ap-

pended hereto, Appendix, p. 41, et seq.

The final judgment of the 53rd District Court of

Travis County, Texas, which formed the basis of the

appellate opinion noted above was numbered and styled

Consolidated Cause No. 132,400, Ammex Warehouse

Company, Inc., et al. v. Texas Liquor Control Board,

et al., and is appended hereto, Appendix, p. 53, et seq.

THE GROUNDS UPON WHICH

-JURISDICTION OF THIS COURT IS INVOKED

L

CHRONOLOGY

The decision of the Court of Civil Appeals for the

Third Supreme Judicial District of Texas from which

appeal is here taken is dated December 2, 1964 (Ap-

pendix, p. 41, et seq.).

Appellants’ motion for rehearing, duly filed on De-

cember 9, 1964, was by the Court of Civil Appeals for

the Third Supreme Judicial District overruled on De-

cember 16, 1964, as certified by the Clerk of the Court

of Civil Appeals.

Application for Writ of Error to the Supreme Court

of the State of Texas was timely filed on January 15,

1965, as certified by the Clerk of the Supreme Court

of the State of Texas.

pa

— ‘ >

The Supreme Court of the State of Texas refused

the application for writ of error, with the notation

“no reversible error,’’ on June 23, 1965, as certified

by the Clerk of the Supreme Court of the State of

Texas.

Motion for rehearing on the application for writ of

error was by the Supreme Court of the State of Texas

overruled on July 28, 1965, as certified by the Clerk of

the Supreme Court of the State of Texas.

Il.

STATUTORY PROVISION CONFERRING

’ \ JURISDICTION

The jarisdiction of this Court is here sought under

28 U.S.C.A. 1257(3), which authorizes this Court to ex-

ercise jurisdiction “‘by writ of certiorari, ... where

the validity of a State statute is drawn in question on

the ground of its being repugnant, to the Constitution

... or-laws of the United States.”

QUESTIONS PRESENTED -FOR REVIEW

The questions presented by this petition for certio-

rari pertain to the right of the State of Texas under

the Twenty-First Amendment to the Constitution of

the United States, the Wilson Act (27 U.S.C.A. 121),

the Webb-Kenyon Act (27 U.S.C.A. 122), and the Fed-

eral Alcohol Administration Act (27 U.S.C.A. 201, et

seq.). to regulate the business of selling, in less than

wholesale quantities, alcoholic beverages, tax free, from

United States Government Bonded Warehouses and

the extent, if any, to which the Export-Import Clause

<ialliei

of the United States Constitution (Article I, Sec. 8,

Cl. 2), the Commerce Clause of the United States Con-

stitution (Article I, Sec. 8, Cl. 3), the Supremacy

Clause of the United States Constitution (Article VI,

Cl. 2), or Federal statutes or regulations enacted pur-

suant thereto deprive the State of Texas of authority

to regulate such business. The questions are:

(1) Does there exist any conflict between any of the

above noted provisions of the Constitution of the Unit-

ed States, or Federal statutes or regulations enacted

pursuant thereto, and Article -667-15(7b), Vernon’s

Annotated Penal Code of the State of Texas, so as to

render the Texas statute unconstitutional?

(2) Does the State of Texas have the authority to

require that nersons and corporations holding feder-

ally issued basic importer’s permits under 27 U.S.C.A.

204 and engaged in the State of Texas in the business

of selling tax free liquor from United States Govern-

ment Bonded Warehouses, Class 2 and 8, authorized

under.19 U.S.C.A. 1555 and 1562, to secure, in addi-

tion to such Federal authorization, permits established

by Texas law to be issued by the Texas Liquor Control

Board ?

(3) Does the State of Texas, in order to prevent

unlawful diversion within the State of Texas, have

the authority to require that liquor sold tax free pur-

portedly for exportation actually“be exported in com-

pliance with Federal regulation?

(4) Where the admitted and undisputed facts show

conclusively that the Class 8 United States Customs

Bonded Warehouses maintained by the liquor sellers-

in Texas are being operated in violation of the con-

i

4

trolling Federal statute, 19 U.S.C.A. 1562, and the

applicable Customs regulations as construed by the

Court of Customs and Patent Appeals, there being no

United States Supreme Court decision directly in-

terpreting that statute, do the liquor sellers have the

right to claim Federal protection from State regula-

tion or does the State of Texas have the authority to

regulate the business of the liquor sellers in order to

prevent the unlawful diversion of the tax-free liquor

within the State of Texas?

(5) Did the Court of Civil Appeals for the Third

Supreme Judicial District of Texas, and, by inference

from its refusal of application for writ of error with

‘no reversible error” annotation, the Supreme Court

of the State of Texas correctly interpret the decisions

of the United States Supreme Court in Hostetter v.

Idlewild Bon-Voyage Liquor Corporation, 377 U.S.

324, 84 S.Ct. 1293, 12 L.Ed. 2d 350 (1964), and Depart-

ment of Alcoholic Beverage Control for the State of

California et al. v. Ammex Warehouse Company of

San Ysidro, Inc., 378 U.S. 124, 84 8. Ct. 1657, 12 L.Ed.

2d 743 (1964), as prohibiting the State of Texas from

regulating, as the State of Texas has attempted to do

by enactment of Article 666-15 (7b), Vernon’s Anno-

tatéd Penal Code, businesses similar to those involved

in the reported cases, where not only is the law of Texas

entirely different from the state laws in the reported

cases, but the businesses themselves also differ from

those involved in the reported cases in the types of

Customs Bonded Warehouses maintained, in various

operational procedures, in places of delivery, and in

legislative recognition of need for regulation? °

(6) Should a state statute regulatory of an aspect

a oe

of the liquor industry be declared unconstitutional on

the ground that the business constitutes foreign com-

merce authorized by Federal law and compliance with

~ the statute is ‘‘impossible’’ when (a) there is no com-

petent evidence that compliance is in fact impossible,

and (b) the business is conducted totally and entirely

within the State of Texas?

THE CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

L

THE TEXAS STATUTE IN QUESTION

The statute in question, an amendment to the Texas

Liquor Control Act, was enacted in 1963 by the 58th

Legislature of the State of Texas (General and Spe-

cial Laws of the State of Texas passed by the Regular °

Session of the Fifty-Eighth Legislature, 1963, Ch. 108,

p. 196) and is codified as Article 666-15(7b), Vernon’s

Annotated Penal Code of the State of Texas. The meas-

ig parca leone w

“‘H.B. No. 782

‘‘An Act amending Chapter 467, House Bill No.

77, Second Called Sessioti, Forty-fourth Legisla-

ture, as such has been heretofore amended, being

the Texas Liquor Control Act, and being the pr

carried in Vernon’s Penal Code as Article 666

and 667, by adding to Section 15 of Article I a

new paragraph to be designated (7b) to provide

for a United States Bonded - Liquér Export Per-

mit authorizing the holder encod to engage in

the business of importing, transporting, and ware-

lilacs

housing United States bonded liquor and the ex-

porting of the same in less than wholesale quan-

tities; defining the authority of such permit hold-

ers; setting the fee for such permits; providing

that the authority granted to such permit holders

is cumulative of and not in lieu o requirements

of Federal Law in the conduct of such operations ;

specifying that such permits shall not be required

of the holder of any other type of permit which,

under the Texas Liquor Control Act and the ruljs

and regulations of the Texas rad Control

Board, authorizes the exportation of iquor in com-

pliance with the requirements of Federal Law:

authorizing those who on the effective date of

Act are engaged in the business of rting Unit-

ed States bonded liquor from the United States

to continue to engage in such operations until their

applications for permits under this Act have been

acted upon provided such applications are filed

within thirty (30) days after the effective date of

this Act; providing for severability; and declar-

ing an emergency.

‘“‘BE IT ENACTED BY THE LEGISLATURE

OF THE STATE OF TEXAS:

“Section 1. Section 15 of Article I of the Texas

Liquor Control Act is hereby amended by the ad-

dition of a new paragraph to be designated (7b),

reading as set out herein: weFia

(7b) United States Bonded Liquor Export Per- /

mit. A United States Bonded Liquor Export Per-/

mit shall authorize the holder thereof to: ~~~

‘‘(a) Purchase liquor in bond from holders of

Texas Wholesalers’ Permits. or purchase liquor

from distillers, brewers, wineries, wine

rectifiers, and manufacturers who are holders of

Nonresident Sellers’ Permits and import inté the

State of Texas at a United States bonded dock

such liquor in transit for exportation purposes.

iti

)

ty

**(b) Transport such liquor from the United

States bonded dock at point of entry under United

States bond to a United States bonded warehouse

within the State of Texas.

‘*(¢) Warehouse such liquor under United States

bond.

**(d) For the purpose of exportation only, solicit

orders for, take orders for, and accept payment

for any quantity of said liquor in unbroken orig-

inal containers.

**(e) Cause such liquor to be withdrawn from a

United States bonded warehouse for exportation,

in compliance with United States Custom regula-

tions, and delivered to a public common carrier

for transportation, in compliance with such car-

rier’s established rate schedule, into the country

of export by such common carrier or by such com-

mon carrier’s affiliated common carrier in the

country of export, for delivery to the purchaser

at a designated address outside the continental

limits of the United States or for delivery to a

named qualified person at a designated address

outside the continental limits of the United States.

‘The annual state fee for a United States Bonded

re rt Permit shall be Seven Hundred

Fifty Dollars ($750). ,

“The privileges authorized by this Section are

cumulative and not in lieu of requirements of Fed-

eral law in the conduct of such operations. It is

specifically provided, however, that its under

this Section shall not be required for the whole-

sale export of United States bonded liquor by the

holder of any other type of permit which, under

existing statutes and the rules and regulations of

the Texas Liquor Control Board, authorizes the

wholesale exportation of liquor in compliance with

Federal Law.

a Sm

‘‘Sec. 2. Any person who, on the effective date

of this Act, is engaged in the business of export-

ing bonded liquor from the United States in com-

pliance with Federal regulations may continue to

engage in such operation until his application for

a permit under this Act has been acted upon, pro-

vided, however, that such application is filed with-

in thirty (30) days after the effective date of this

&,

Act. os

“Sec. 3. If any provision of this Act or the ap-

plication thereof to any person or circumstance is

held invalid, such invalidity shall not affect other

eho age or applications of the Act which can

given effect without the invalid provisions or

applications, and to this end the provisions of this

Act are declared to be: severable. :

“Sec. 4. The fact that there is an urgent need to

amend the Texas Liquor Control Act to bring with-

in the scope of State regulatory authority the ju-

dicially declared legitimate business of exporting

United States bofded liquor in less than wholesale

quantities, together with the further fact that liq-

uor is presently being sold in the State of Texas

for exportation in violation of the laws of this

State, that the State of Texas is receiving. no tax

revenue from such sales, and that Texas has an

extensive international boundary along which the

sale of liquor can be effectively regulated and con-

trolled for the benefit of ae people of the State

of Texas oniy by requiring all persons in

any legitimate phase of the liquor industry to hold

permits or licenses issued by this State through

the Liquor Control Board, create an emergency

and an imperative public necessity that the Con-

stitutional Rule requiring bills to be on three

several days in each House be suspended, and said

Rule is hereby suspended, and this Act shall take

effect and be in force from and after its ‘passage,

and it is so enacted.

a en

a

‘*Passed the House, April 4,-1963, by a non-rec-

ord vote; passed the Senate May 2, 1963, by a viva-

voce vote.

‘‘ Approved May 7, 1963.

‘‘Effective 90 days after date of adjournment.’’

Il.

PROVISIONS RELIED UPON

BY PETITIONERS

The authority of the State of Texas so to regulate

an aspect of the liquor industry within its borders is,

Petitioners submit, established by Section 2 of the

Twenty-First Amendment to the Constitution of the

United States, which reads:

‘Sec. 2. The transportation .or importation into

ahy State, Territory, or possession of the United

“ States for delivery or use therein of intoxicating

‘ liquors, in violation of the laws thereof, is hereby

prohibited.’’

Petitioners also rely upon the Wilson Act (27

US. GA. 121), which specifies:

_ All fermented, distilled, or other intoxicating

» liquors or liquids transported into any State or

Territory ox tentieinizig therein for use, ¢onsump-

tion, sale or therein, shall upon arrival in

such State or itory be subject to the operation

and effect of thé laws of such State or Territory

enacted in the exégcise of its police powers, to the

same extent and > Paes same manner as though

such liquids or liquors had been produced in such

State or Territory, and shall not be exempt there-

from by reason of being introduced therein in orig-

inal packages or otherwise.’’

—10—

The Webb-Kenyon Act (27 U.S.C.A. 122) contains

similar but even more specific state authorization. It

reads:

“The shipment or transportation, in any manner

or by any means whatsoever, of any spirituous,

vinous, malted, fermented, or other intoxicating

liquor of any kind, from one State, Territory, or

District of the United States, or place noncontigu-

ous to but subject to the jurisdiction thereof, into

any other State, Territory, or District of the Unit-

ed States, or place noncontiguous to but subject

to the jurisdiction thereof, or from any foreign

country into any State, Territory, or District of

the United States or place noncontiguous to but

subject to the jurisdiction thereof, which said spir-

ituous, vinous, malted, fermented, or other intox-

icating liquor is intended, by any person interested

therein, to be received, possessed, sold, or in any

-Imanner used, either in the original package or

otherwise, in violation of any law of such State,

Territory, or District of the United States, or

place noncontiguous to but subject to the juris-

diction thereof, is hereby prohibited.”

The Federal Alcohol Admini#tration Act (27

U.S8.C.A. 201, et seq.), in its entirety, recognizes the

peculiar right of states to regulate all aspects of the

alcoholic beverage industry conducted within the boun-

daries of the states. Of particular significance here is

that portion of the Act relating to the issuance of per-

mits and reading (27 U.S.C.A. 204): :

. (a) Who entitled thereto. The following persons

. shall, on application therefor, be entitled to a basic

permit:

‘*(1) Any person who, on May 25, 1935, held a

basic permit as distiller, rectifier, wine producer.

or importer issued by an agency of the Federal

Government.

—l1—

‘*(2) Any other person unless the Secretary of

the Treasury finds (A) that such person (or in

case of a corporation, any of its officers, directors,

or principal stockholders) has, within five years

prior to date of application, beén convicted of a

felony under Federal or State law or has, within

three years prior to date of application, been con-

victed of a misdemeanor under any Federal Law

relating to liquor, including the taxation thereof ;

or (B) that such person is, by reason of his busi-

ness experience, financial standing, or trade con-

nections, not likely ‘o commence operations with-

in a reasonable period or to maintain such opera-

tions in conformity with Pederal Law; or (C) that

the operations proposed to be conducted by such

person are in violation of the law of the State in

which they are to be conducted.”’

Ill.

PROVISIONS UPON THE IS OF

WHICH TEXAS COURTS RULED THE

STATUTE IN QUESTION UNCONSTITUTIONAL

The Texas statute has been held to be in violation

of the Export-Import Clause, the Commerce Clause,

and the Supremacy Clause of the Constitution of the

United States, Article I, Section 8, Clauses 2 and 3,

and Article VI, Clause 2:

‘‘The Congress shall have Power To lay and col-

lect Taxes, Duties, Imposts, and Excises, to pay

the Debts and provide for the common Defence

and general Welfare of the United States; but all

Duties, Imposts and Excises shall be uniform

throughout the United States; ©

* * +

=|

v - ¢ Sotet pete mies pape

ener te ee eS RN, ATA

“To regulate Commerce with foreign Nations, and “

among the several States, and wath 'the Indian

Tribes ;’’

* +

“This Constitution, and the Laws of the. United

States which shall be made in Pursuance thereof ;

- and all Treaties made, or which shall be made, un-

der the Authority of the United States, shall be

the supreme Law of the Land; and the J udges in

every State ll be bound thereby, any Chi

in the Constitution or Laws of any State’to the

Contrary notwithstanding.”

\ IV. nes .:

OTHER STATUTES AND REGULATIONS

‘ INVOLVED _ f

The Respondenf liquor sellers in Texas maintain .

Class 2 and 8 United States Customs Bonded Ware-

"houses authorized by 19 U.S.C.A. 1555 ahd 19 U.S.C.A.

1562 and subject to the provisions of the Title 19, Code

of Federal Regulations, Customs Regulations, Part 19, °

Sections 19.1 and 19.11, CR. 379-381 and CR 386-387.

The statutes and regulations are set, out in the Appen- tom

dix, p. 57, et seq.

Those selling liquor for export in New York and

California, involved in Hostetter v. Idlewild Bon-V oy-

age Inquor Corporation, 377 U.S. 324, 84 S.Ct. 1293,

12 L.Ed.2d 350 (1964), and Department of Alcoholic

Beverage Control for the State of California v. Am-

mex Warehouse Company of San Y. sidro, Inc., 378

U.S. 124, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964), oper-

ated from Class 6 United States Customs Bonded

=

Warehouses authorized under 19 U.S.C.A. 1311 and

subject to the provisions of the Title 19, Code of Fed-

eral Regulations, Customs Regulations, Part 19, Sec-

tion 19.13, CR 387-388. The statute and regulation are

set out in the Appendix, p. 63, et seq. |

The Texas statute in question, as noted above, au-

thorizes permit holders ‘“‘in compliance with United

States Customs Regulations,’’ to withdraw liquor from

the warehouse and to deliver it to a common carrier

for transportation to the country of export. The Texas

statute, thus, incorporates not only the Federal stat-

utes and regulations applicable to the type warehouse

for which a liquor seller qualifies but also the ‘defini-

tion of ‘‘common carrier”’ as set out in Title 19, Code

of Federal ‘Regulations, Customs Regulations, Part 18,

Section 18.1, CR 363, set out in the Appendix, p. 70,

and Section (a), subsection (5) of 49 U.S.C.A. 1002,

which is incorporated by reference in the Customs Reg-

ulation definition and which is set out in the Appen-

dix, p. 72. . |

Respondent liquor sellers assert that the procedure:

which they follow in Texas constitutes exportation of

the liquor in compliance with Federal regulations. Pe-

titioners dispute that contention upon the basis of the

definition of ‘‘exportation,’’ Title 26, Code of Federal

Regulations, Part 252, Exportation of Liquors, Sub-

part B, § 252.11, quoted in Appendix, p. 74, and the

specified ‘‘evidence of exportation,’’ Title 26, Code of

Federal Regulations, Part 252, Exportation of Liquors,

Subpart B, § 252.40, quoted in Appendix, p. 75.

STATEMENT OF THE CASE

The specific question in this case is the constitution-

—14--

ality of Article 666-15(7b), Vernon’s Annotated Penal

Code of the State of Texas (Acts 1963, 58th Leg., Ch.

108, p. 196, quoted in full above). The statute, as it

shows on its face, is an amendment to the Texas Liquor

Control Act. It establishes a permit for those engaged

in selling liquor for export from United States Cus-

toms Bonded Warehouses and provides for such busi-

nesses regulations identical to or comparable with those

applicable to all other aspects of the alcoholic bever-

age industry in the State of Texas. The statute was

enacted after the three-judge Federal court in Jdle-

wild Bon-Voyage Liquor Corporation v. Epstein, 212

F.Supp. 376 (D.C., 8.D.N.Y., 1962), held that the State

of New York could regulate but could not constitu-

tionally prohibit a business similar to, but not identical

with, those then being operated in Texas towns along

the Mexican border. It had initially been the position

of the State of Texas, as it was New York’s position

in the reported case, that the state could absolutely

prohibit tax-free retail sales of liquor ‘‘for export.”’ .

Ammex Warehouse Company, Inc., a Respondent

here, was the first of the ‘“‘export’’ sellers in Texas.

Hal G. Ward, founder of the company (8.F. 7, 14, 81)

began operations in Laredo in June, 1961 (S.F. 10),

under a wholesaler’s permit provided in the Texas

Liquor Control Act (Article 666-15(6), Vernon’s An-

notated Penal Code). Such permits authorize expor-

tation of liquor but only in wholesale quantities (Ar-

ticles 666-15 and 666-23a, Vernon’s Annotated Penal

Code). When it became apparent that Ammex was

selling at retail, the Texas,Liquor Control Board can-

celled the permit. “

Ammex appealed from the cancellation by filing suit

= =

ne,

PS RE oe at we!

SAR OS thin. SS gn ni cates Petia tow oe Ss

against the Board, Cause No. 123,485 in the 53rd Dis-

trict Court of Travis County (Tr. 344). At that time

the Texas Liquor-Gontrol Act provided no permit ap-

plicable to the type of operations being conducted by

Ammex, and the trial court held that the Act could not

constitutionally be applied to the business and issued.

an injunction prohibiting the Liquor Control Board,

its officers and employees from in any manner inter-

fering with the operations of the liquor seller (Tr.

359). The Texas situation was, therefore, at that time

comparable with that which existed in New York at

the time of the Idlewild ease. The other liquor sellers

who are Respondents here began operations after judg-

ment was entered in the original Texas Ammex case

(Tr. 16, 344).

Under those circumstances, the Texas Legislature

accepted as correct the views expressed by the three-

judge Federal court in New York and drafted the

statute here in question to conform precisely with the

operations which the Federal Court had held to be a

legitimate business. Thereafter this Court, in Hostetter

v. Idlewild Bon-Voyage Liquor Corporation, 377 U.S.

304, 84 S.Ct. 1293, 12 L. Ed. 2d 350 (1964), affirmed

the lower Court’s decision, also limiting its holding to

the fact that New York was seeking absolutely to pro-

hibit—not to regulate. —

Before this Court’s decision in the Idlewil@ case

and before the effective date of the Texas statute, Re-

spondents, seven firms who at that time were operat-

ing, in the six major Texas towns along the Mexican

berder, seventeen liquor selling establishments’ of _the

1Respondents are (1) Ammex Warehouse Company, Inc.,

operating seven sales establishments, two in Brownsville, two

precise type to which the statute was designed to apply,

challenged the constitutionality of the statute, taking

the position, again in the 58rd District Court of Travis

County, Texas, that the State of Texas is completely

lacking in power to regulate or control their businesses

im any manner whatsoever.’

Federal questions were raised by all parties at the

earliest possible opportunity. The Original Petition

of Ammex Warehouse Company, Inc., the first of those

who are Respondents here to file a suit attacking the

validity of the statute, alleges in part (Tr. 6):

“*, .. The Twenty-first Amendment to the Consti-

tution does not provide the State of Texas with

the power it has attempted to assert over the busi-

in Laredo, and one each in Hidalgo, Eagle Pass and El Paso;

(2) Halem Ayoub and Sam Wardy, partners doing business

3) Yew by orn dg eg wt gprs in El Paso;

icente Garza, Jr., orge Garza, partners doing busi-

neon Beenie aa Tae oe sales establishments in

4) Albert Anzaldua, an in-

*The case originated as five separate but substantially iden-

tical suits filed oll'behalf of the various liquor selling estat

lishments. Each petition sought declaratory judgment holding

the statute titutional and permanent injunction pro-

hibiting the T. Liquor Control Board, its Administrator,

agents, and employees from enforcing or attempting to en-

force the new law. Separate temporary injunctions were is-

sued (Tr. 185, 189, 219, 223), but the five cases were formally

consoliated for trial on the merits (Tr. 290).

a ian

ness of Plaintiff by said House Bill 782, since the

liquor handled ‘2g Plaintiff is not liquor which

merely travels in interstate commerce, but all liq-

uor handled by Plaintiff is, from beginning to end,

in the stream of foreign commerce and is not in-

tended for consumption or use within the State of

Texas. The export business of Plaintiff is sanc-

tioned, controlled, and protected by the Export-

Import Clause of the United States Constitution

(Art. I, See. 8, Cl. 2) and the Federal Statutes

and Regulations enacted pursuant thereto; the

Commerce Clause of the United States Constitu-

tion (Art. I, See. 8, Cl. 3), and the Supremacy

Clause of the United States Constitution (Art. VI,

Cl. 2), and any attempt to enforce the Texas

Liquor Control Act, as amended, is violative of

the above clauses of the United States Constitu-

eS

Comparable allegations are contained in the orig-

inal petitions filed in the same Court by the other

liquor sellers who are Respondents here (Tr. 40-41, 54,

103, 133-134) and were repeated in all amended plead-

ings by all parties who are Respondents here (Tr. 198,

246, 281, 283).

The trial court adopted the contentions of the liquor

sellers, ruling in final judgment in the consolidated

cause that (Tr. 335 and Appendix, p. 54): "4

‘“‘The Texas Liquor Control Act, as amended by

House Bill 782, Acts of the 58th Leg. (1963) Ch.

108, p. 196, codified as Article 666-15(7b), Ver-

_ non’s Annotated Penal Code, cannot constitution-

ally be applied to Plaintiffs so long as they are

engaged in the ‘in bond’ liquor business which is

hereinafter described.’’

The judgment of the trial court further granted, in

conformity with the prayer of the liquor sellers, an

_ ae

injunction permanently enjoining the Texas Liquor

Control Board, its Administrator, agents, employees, —

representatives, and successors in office ‘‘from in any-

wise, directly or indirectly, interfering with, control-

ling or regulating any or all of the plaintiffs [ Respond-

ents here] . . . in the operation of their respective

businesses anywhere in the State of Texas” (Tr. 335,

Appendix, p. 55).

As they had done as Defendants in the trial court,

Petitioners as Appellants in the Court of Civil Ap-

peals for the Third Supreme Judicial District of Texas

took the position that the statute in question, a regula-

tory measure, is authorized by the Twenty-First

Amendment to the Constitution of the United States,

_ the Wilson Act (27 U.S.C:A. 121), the Webb-Kenyon

Act (27 U.S.C.A. 122), and the Federal Alcohol Ad-

ministration Act (27 U.S.C.A. 201, et seq.). The brief

in which those contentions are set out is a part of the

record certified to by the Clerk of the Court of Civil

Appeals for the Third Supreme Judicial District of

Texas and now before this Honorable Court (see es-

pecially pp. 73-78, reproduced in Appendix, p. 76, et

seq.). 2

After this Court’s decision in Hostetter v. Idlewild

Bon-V oyage Liquor Corporation, 377 U.S. 324, 84 8.Ct.

1293, 12 L.Ed.2d 350 (1964), and per curiam opinion

in Department of Alcoholic Beverage Control for the

State of California v. Ammezx Warehouse Company

of San Ysidro, Inc., 378 U.S. 124, 84 S.Ct. 1657, 12

L.Ed.2d 743 (1964), affirming Ammex Warehouse

Company of San Ysidro, Inc. v. Department of Alco-

holic Beverage Control for the State of California, 224

F. Supp. 546 (D.C., S.D.Cal., 1963), became available,

—_

OL SR Ah

y

Petitioners, in a reply brief submitted in the Court of

Civil Appeals for the Third Supreme Judicial District

of Texas (Appellants’ Reply to Appellees’ Brief, a

copy of which certified to by the Clerk of that Court is

now before this Honorable Court) contended, as they

now contend as Petitioners here, that those decisions

conclusively establish the right of the State of Texas

to regulate the business of selling for export tax-free

liquor from United States Government Customs

Bonded Warehouses and, therefore, the validity of

the Texas regulatory measure here in question. That

statute, as noted above, ‘was drafted after the decision

of the three-judge court in the Idlewild case and is

quite obviously based upon the facts and the law as

declared by that Court.

The ‘‘export’’ liquor sellers, who were Appellees

below and are Respondents here, emphasized the super-

ficial similarities between their operations and those

of the sellers in the New York and California cases

and contended, as the Court of Civil Appeals noted (384

S.W.2d 768, at 770 and Appendix, p. 45), that this

Court’s rulings in the two cases were “‘controlling and

that the 21st Amendment to the.Constitution does not

permit the State to regulate liquor passing through

its territory under the supervision of the United States

Bureau of Customs.’’ The Court of Civil Appeals

adopted the Appellees” argument and held (384 S.W.

2d 768 at 772 and Appendix, p. 50):

‘“We believe that the Statute is in the face of the

Commerce Clause and the Supremacy Clause, as

set out in the Idlewild and California —

cases, supra.”’

Quite obviously the parties here have drawn from -

—) |

this Court’s rulings diametrically opposite conclusions.

Petitioners believe that this Court clearly authorized

. State regulation. Respondents and the majority of the

Austin Court of Civil Appeals apparently believe that

any form of State regulation is prohibited. The con-

curring opinion (384 S.W.2d 768 at 772 and Appen-

dix, p. 51, et seq.) takes the position that the Legis-

lature of the State of Texas has no authority upon the

basis of existing conditions and facts before it to find

a need for regulation and that regulation should be

sustained only upon sworn testimony that a “‘signifi-

cant quantity of liquors” sold by these ‘‘export”’ sell-

ers had in fact been diverted for consumption in Texas.

Such divergent interpretations of this Court’s ral-

ings—particularly in a matter of the significance of

the State’s right to regulate an aspect of the liquor

industry—and the resulting need for clarification might

alone be abundant reason for the grant of certiorari

here.

There are, however, a number of other facts mate-

rial to consideration of the questions presented. Those

facts are most plainly demonstrated by noting the dif-

ferences between the facts in Texas and the New York

and California situations which. were before this Court

in Hostetter v. Idlewild Bon-Voyage Liquor Corpor-

atton, 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350

(1964), and Department of Alcoholic Beverage Con-

trol for the State of California v. Ammex Warehouse

Company of San Ysidro, Inc., 378 U.S. 124, 84 S.Ct.

1657, 12 L.Ed.2d 743 (1964), affirming, per curiam,

Ammex Warehouse Company of San Ysidro, Ine. v.

Department of Alcoholic Beverage Control for the

State of California, 224 F.Supp. 546 (1963).

=<

ete cera e Rit TA OA ine ew eben ARV Cn dog

The law of Texas is entirely different from the laws

of New York and California. The Texas statute in ques-

tion, quoted above (p. 6), authorizes the business of

selling alcoholic beverages for export from United

States Customs Bonded Warehouses and provides a

permit for those desiring to operate such businesses.

New York contended that the Idlewild business was

‘‘illegal under the provisions of the New York Alco-

holic Beverage Control Law, because the business was

unlicensed’ and unlicensable, under that law” (377 U.S.

326, 84 S.Ct. 1294). New York was attempting ‘‘to pro-

hibit absolutely’”’ (377 U.S. 329, 84 S.Ct. 1296). In Cal-

ifornia ‘none of the state’s licensing provisions fit the

proposed operation of the plaintiffs’? (224 F.Supp.

551) ; ‘‘no licensing provision of the present state act

cover plaintiff’s operations. Defendant would therefore

bar Plaintiffs from this business’? (224 F.Supp. 552).

The Texas statute is regulatory. It declares that it

is based upon ‘‘an urgent need to... bring within

the scope of State regulatory authority’’ the business

in which Respondents are engaged because ‘‘Texas has

an extensive international boundary along which the

sale of liquor can be effectively regulated and con-

trolled . . . only by requiring all persons engaged in

any legitimate phase of the liquor industry to hold

permits or licenses’? (Emergency Clause of statute in

question, quoted above, p. 9). New York had ‘“‘not

sought to regulate or control the passage of intoxicants

through her territory in the interest of preventing

their unlawful diversion into the internal commerce

of the State. .. . Rather New York has sought totally

to prevent [the] transactions [of Idlewild]”’ (377 U.S.

*All emphasis has been supplied unless the contrary is noted.

—29—

333-334, 84 S.Ct. 1299). In California the Liquor Au-

thority did “‘not seek to use the power of Califorma

to regulate or supervise. It seeks to terminate” (224

F.Supp. 557).

The warehouses maintained by the Texas liquor sell-

ers are completely different from those out of which

the liquor in New York and California is sold. Other

than Border Bonded which has only a Class 2 United

States Customs Bonded Warehouse (S.F. 355, 369,

433), all of the Respondents have Class 2 and 8 United

States Customs Bonded Warehouses (S8.F. 21, 135, 162,

174, 304, 434, 542). The Class 2 and 8 Warehouses are

ordinary storage establishments (19 U.S.C.A. 1555,

1562, quoted in Appendix, p. 57, et seq.) ; the only dis-

tinction between them is that in a Class 8 Warehouse

the collector of Customs may authorize repackaging

if ‘‘it is necessary to the safety or preservation of the

merchandise”’ (19 U.S.C.A. 1562; 19.11 Customs Reg-

ulations: of the United States, CR-386-387, quoted,

Appendix, p. 58, et seq.). The Idlewild operation in

New York is conducted out of a warehouse authorized

under ‘19 U.S.C.A. § 1311’? (377 U.S. 327, 84 S.Ct.

1295, ftn. 3). The California operation is conducted

from the same type warehouse. ‘‘Pursuant to the Com-

merce Clause the Congress enacted Section 311 of the

Tariff Act of 1930 (19 U.S.C.A. § 1311) providing for

bonded manufacturing warehouses’? (224 F.Supp.

503). The bonded manufacturing warehouses, identi-

fied as Class 6, were created and designed and are op-

erated primarily for exportation. They are controlled

by totally different statutes and regulations (19

U.S.C.A. 1311 and 19.13 Customs Regulations of the

United States, CR 387-388, quoted, Appendix, p. 63,

et seq.).

_—

ot athioale

Od hen ocala ed mold

Only Ammex purported to introduce documentary

evidence of authority to operate as a Class 2 and 8

United States Customs Bonded Warehouse. A Xerox

reproduction (Pl.Ex. 3, S.F. 21, 587) was identified

as the authorization for the Ammex warehouse at Hi-

dalgo, Texas. There was testimony that similar letters

had been issued for each Ammex warehouse (S8.F. 21),

and the other Respondents, except Border Bonded,

testified that they had the same type of authority (S.F.

135, 162, 174, 304, 318, 319). The reproduction (P1.Ex.

3, S.F. 21, 587), bears the typed signature, ‘‘O. H.

Kazen, Collector of Customs,” and appears to have

been signed by S. W. Trout, Assistant ‘Collector. The

letter grants no authority whatsoever to ‘repackage any

liquor or merchandise of any kind. The controlling stat-

utory provision (19 U.S.C.A. 1562, Appendix, p. 58)

and Customs regulation (19.11, CR 386-387, Appendix,

p. 61), therefore, is that ‘“‘no merchandise shall be with-

drawn from bonded warehouse in less quantity than

an entire bale, cask, box, or other package .. . the

original package in which imported.’”’ Respondents

themselves testified ‘that they receive their shipments

“ of liquor in cases, ‘‘twelve bottles to a case’’ (S.F. 109,

117, 170-171, 276, 311, 318, 372) and that they remove

the liquor from the cases in which it was received and

package it in ordinary paper sacks for delivery to

their customers (S.F. 109, 171, 180, 276, 311, 552, Tr.

355). There are no restrictions on packaging or re-

packaging of withdrawals from the Class 6 Bonded

Manufacturing Warehouses (19 U.S.C.A. 1311; Ap-

@ pendix, p. 63; 19.13 Customs Regulations of the United

States, CR 387-388, Appendix, p. 67), from which the

New York and California liquor sellers operate. The

operations of the Texas sellers are in violation of their

—24—

»

\. Federal authority; they have no permit to repackage,

‘and, since removing a bottle of whiskey from a case

and putting it in a paper sack could hardly be said to

be for the “‘safety or preservation’’ of the whiskey,

the operation could not be authorized under the stat-

ute. There was no showing of violation in New York

or California, and the operations as described in the

opinions, are not contrary to the authority the sellers

were said to have.

There is a marked and significant difference in the

areas of delivery. The liquor sold by the Texas sellers

is delivered within the ordinary confines of the State

of Texas, on open street corners of the Texas towns

in which Respondents’ businesses are conducted (S.F.

115, 162, 275, 304, 312, 319, 338, 350, 351). The liquor

sold by Idlewild in New York “‘is transferred directly

to the departing aircraft . . . and is not delivered to

the customer until he arrives at his foreign destina-

tion” (377 U.S. 325, 84 S.Ct. 1294). In California the

liquor ‘‘is delivered to the customer as he departs...

into Mexico’’ from ‘‘a 60 foot strip declared by the

President to be a public reservation as a protection

against smuggling . . . [over which] the United States

has jurisdiction’’ (294 F.Supp. 548-549).

There is a marked and significant difference in the

amount of business being conducted. At the time of

trial there were in Texas seven firms operating seven-

teen liquor selling establishments in the six major

Texas towns along the Mexican border (see footnote

1, p. 16). In New York only one small business, Idle-

wild, operating at an international airport, was in-

volved (377 U.S. 325, 84 S.Ct. 1294). In California

‘‘plaintiffs’’ were ‘‘two California corporations’’ (224

F.Supp. 548).

—25—

eee eee ne en a eee ee ene ne Panes BeBe

(|

f

—_

There ts a difference in possibility and likelihood of

diversion for use within the State. Because the liquor

is tax-free, Respondents’ prices are less than half the

prices charged for the same liquor by State authorized,

tax-paying package stores (S.F. 214, 280, 551). Liquor

sold by Respondents is delivered to the customers on

the Texas side of the international bridges on public

streets of the Texas towns in which Respondents op-

erate their businesses (S.F. 115, 138, 162, 275, 304, 312,

‘319, 338, 350, 351). The so-called ‘‘export offices’’ main-

tained near the bridges and in the vicinity of which

the deliveries are made, are hardly larger than an or-

dinary telephone booth (Plaintiffs’ Exhibit 9-17, S.F.

53, 54, 62, 64, 66, 67, 69, 593-601). Only one export. of-

ficer is on duty (S.F. 117). The liquor is packaged \in

ordinary paper sacks (S.F. 108, 171, 180, 276, 311, 355,

552). The paper sacks of liquor, sometimes as many

as a hundred or more, are lined up along unfenced

sidewalks (S.F. 200, 201, 234). Deliveries are frequent-

ly being made by three of the Respondents at one time

in the same general area (S.F. 208, 518, 519, 549).

Deliveries are made on both sides of the street (S.F.

178, 519) to pedestrians as well as persons in automo-

biles (S.F’. 45, 67-68, 104, 184, 248, 519, 548-549). Traffic

of all types is heavy (S.F. 207, 518, 520, 549). In

Brownsville there is an ordinary supermarket between

the so-called export office and the international bridge

(S.F. 177, Plaintiffs’ Exhibit 16). There is also an

alley-way behind the Humble station at the side of

which one of the Respondents makes its deliveries

(S.F. 177, 518). There is no physical barrier which

would prevent persons from accepting delivery of the

liquor and then going down the alley and remaining

in Texas (S.F. 520). Persons can also accept delivery,

—26—

walk part way to Mexico, turn around, and walk back

into Texas (S.F. 287). There is nothing except a per-

son’s own conscience to determine whether he will go

into Mexido or remain in Texas (S.F. 311).

The method of park of the Texas sellers does

not fulfill the definition of exportation or evidence of

exportation as provided in Title 26, Code of Federal

Regulations, Exportation of Liquofs, Subpart B, §

252.11 and § 252.40 (Appendix, p.\74, et seq.). The

liquor sold by Idlewild in New York is exported; it

“is transferred directly to the departing aircraft .. .

and is not delivered to the eustomer until he arrives

at his foreign destination” (377 U.S. 325, 84 S.Ct.

1294). In contrast with the oversize telephone booth

type “‘export offices”? maintained on the public streets

of some Texas towns, with most of the thousand mile

Texas-Mexican border unbarricaded and unguarded,

“‘at the boundary between California and Mexico there

is a 60 foot wide strip declared by the President to

be a public reservation as a protection against smug-

gling. ... The state of California and the United

States have concurrent jurisdiction over the 60 foot

strip” (224 F.Supp. 548-549). The “‘office-of the U.S.

Bureau of Customs [is] located within such-strip’’

(224 F.Supp. 548). The liquor sold in California is

“‘delivered to the customer as he departs from the 60

foot strip into Mexico”’ (224 F. Supp. 549). The liquor

would be confiscated if not exported. ‘‘If he does not

cross the border, the custody [of the liquor] may be

taken from the customer’? (224 F.Supp. 549). :

A bottle of Chivas Regal Scotch whiskey sold in

Texas by one of the Respondents is in evidence before

this Court, together with the paper sack in which it

me ee

Catntteteiaten

+r,

f

i .

was ‘‘packaged” for.sale (Int. Exhibits 3 and 4, S.F.

552-553). Other liquor apparently sold by Respondent

liquor sellers in Texas has been brought back into

Texas (S:F. 516, 517, 523, 526, 532-533, 534). In New

York ‘‘the Liquor Authority ... neither alleged nor

proved the diversion of so much as one bottle of plaint-

iff’s merchandise to users within the state of New

York’’ (212 F.Supp. at 386, quoted 377 U.S. 328, 84

S. Ct. 1296). In California at the time of trial the

liquor sellers’ operations were only ‘‘proposed’’ (224

F.Supp. 548). Lex

The Court of Civil Appeals for the Third Supreme

Judicial District of Texas in the opinion her brought

before this Court ruled that the State of Texas is by

the Constitution of the United States, prohibited from

regulating the businesses of the Respondent liquor sell-

ers and affirmed the trial court judgment permanently

enjoining the Texas Liquor Control Board, its Admin-

istrator, officers, agents, and successors in office from

in anywise, directly or indirectly, interfering with, con-

trolling or regulating any of the Respondent liquor

sellers.

The Court of Civil Appeals for the Third Supreme

Judicial District of Texas was the highest court of the

state in which a decision could be had. In view of the

procedures specified above (p. 2), the decision meets

the jurisdictional requirements of this Court. Michi-

gan-Wisconsin Pipeline Co. v-Calvert, 347 U.S. 157, at

160, 74 S.Ct. 396 at 397, 98 L.Ed. 583 (1954).

REASONS RELIED ON FOR

ALLOWANCE OF WRIT

Unless this Court grants petition for certiorari, the

a

tis

\

\

State of Texas will be forever prohibited from exer-

cising any control over a portion of the liquor indus-

try operated exclusively within the State. The pres-

ent significance of the problem is shown—and future

prospects are indicated—by the fact that between June

of 1961 and August of 1963 the extent of this type op-

eration in Texas increased from a single firm at one

location (S.F. 10) to seven firms with seventeen differ-

ent establishments (Tr. 334-336). During that- period _

the State could not and did not attempt to interfere

because of the injunction incorporated in a trial court

decision in the first Texas Ammex case (Tr. 12-16).

The growth of the businesses and their activities, how-

ever, caused the Texas Legislature to find a need for

regulation and to enact the statute here in question

for that purpose. |

a

The measure, therefore, was passed in an effort to

bring the businesses already established in Texas under

State control and, as noted above, was based directly —

upon Idlewild Bon-Voyage Liquor Corporation v. Ep-

stein, 212 F.Supp. 376 (D.C., S.D.N.Y., 1962), where

the three-judge Federal Court held that New York

could not ‘‘absohitely' prohibit’? the Idlewild business

but carefully explained that ““New York no doubt has

the power to regulate plaintiffs’ operation for local

protection” (212 F.Supp. 383). Previously the Court

had pointed out that (212 F.Supp. 382) :

**. . Plaintiff’s operation is a small one. We are

not made aware that there is any other like it in

New York or elsewhere. If others exist apparently

no effort has been made to eliminate them. More-

over the very nature of the business allows for

only a few such enterprises and an operation very

limited in size and scope. .. .”’

— |

Since even under those circumstances New York

‘no doubt’”’ had ‘‘the power to regulate . . . for local

protection,’’ the decision provided abundant authority

for the State of Texas, with an unbarricaded, unguard-

ed international boundary approximately a thousand

miles in extent and with the number of ‘‘export”’ liquor

sellers rapidly increasing, to enact the statute in ques-

tion upon the basis of findings, as declared in the emer-

gency clause, that:

. there is an urgent need to amend the Texas

Laer Control Act to bring within the scope of

State regulatory authority the judicially declared

legitimate business of exporting United States

bonded liquor in less than wholesale quantities . . .

and that Texas has an extensive international

boundary alosg which the sale of liquor can be

effectively regulated and controlled for the bene-

fit of the people of the State of Texas only by re-

all persons engaged in any legitimate phase

of the liquor industry to hold permits or licenses

ae by this State through the Liquor Control

The body of the inate (quoted above, p. 6) pro-

vides a permit and authorizes procedures in conform-

ity with the Idlewild operation. Its regulatory meas-

ures are obviously designed to prevent unlawful di-

version within the State of Texas. Nevertheless, and

in spite of the fact that this Court affirmed the deci-

sion of the New York three-judge court, the Court of

Civil Appeals for the Third Supreme Judicial District

of Texas has held that the Texas statute is unconstitu-

tional under the Commerce and Supremacy Clauses

of the Constitution of the United States.

In making that holding the State court has decided

+

.

substantial Federal questions in a manner which does

not appear to be in accord with applicable decisions

of this Honorable Court, notably Hostetter v. Idlewild

Bon-V oyage Liquor Corporation, 377 US: 324, 84 S.Ct.

1293, 12 L.Ed.2d 350 (1964) ; and Department of Alco-

holic Beverage Control for the State of California v.

Ammex Warehouse Company of San Ysidro, Inc., 387

U.S. 124, 84 S.Ct. 1657, 12 L.Ed2d 743 (1964), a per

curiam opinion affirming Ammex Warehouse Company

of San Ysidro, Inc. v. Department of Alcoholic Bev-

erage Control for the State of rire 224 F.Supp.

546 (D.C., S.D.Cal., 1963). The right of a)state to re-

quire permits of persons yee ob an aspect of the

liquor industry has been repeatedly recognized, De-

partment of Revenue v. James B. Beam Distilling

Company, 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362

(1964). In Ziffrin v. Reeves, 308 U.S. 132, 60 8.Ct. 163,

84 L.Ed. 128 (1939), as well as in other decisions, this

Court has upheld the state’s right to regulate the trans-

portation of intoxicants in a manner comparable with

that provided in the Texas statute. “

Although this Court im affirming Idlewild did not

repeat the three-judge court’s specific holding that

New York could regulate for locdl protection, such a

holding is clearly implied. This Court’s final ruling

was (377 U.S. 333-334, 84 S.Ct. 1299) :

‘*... The State has not sought to regulate or con-

trol the passage of intoxicants through her terri-

tory in the interest of preventing their unlawful

diversion into the internal commerce of the State.

As the District Court emphasized, this case does

not involve ‘measures aimed at preventing w-

ful diversion or use of alcoholic beverages within

New York.’ 212 F.Supp., at 386. Rather, the State

=

has sought totally to prevent transactions carried

on under the aegis of a law passed by Congress

in the exercise of its explicit power under the Con-

stitution to regulate commerce with foreign na-

tions. This New York cannot constitutionally do.”’

Moreover, after citing Collins v. Yosemite Park

Company, 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502

(1938), as reflecting the principle applicable to the.

situation under consideration, this Court explained

that (377 U.S. 333, 84 S.Ct. 1298) :

‘“‘We may assume that if in Collins California

had sought to regulate or control the transporta-

tion of the liquor there involved from the time of

its entry into the State until its delivery at the

national park, in the interest of preventing un-

lawful diversion into her territory, California

would have been constitutionally permitted to do

OT es

A footnote to that statement cites two of the Fed-

eral statutes upon which Petitioners here rely. The

Twenty-First Amendment, also urged by Petitioners,

had been previously discussed at length (377 U.S. 329-

332, 84 S.Ct. 1296-1298), and the ultimate ruling was

identified as an ‘‘accommodation of the Twenty-First

Amendment with the Commerce Clause’’ (377 U.S.

333, 84 8. Ct. 1299).

The holdings are substantially identical in Ammezx

Warehouse Company of San Ysidro, Inc. v. Depart-

ment of Alcoholic Beverage Control for the State of

California, 224 F.Supp. 546 (D.C., S.D.Cal., 1963),

which this Court in Department of Alcoholic Beverage

Control for the State of California v. Ammex Ware-

house Company of San Ysidro, Inc., 378 U.S. 124, 84

S. Ct. 1657, 12 L.Ed.2d 743 (1964), affirmed with a per

— es

curiam opinion citing the Idlewild case. Like the New

York court, the California Federal court specifically

construed Commerce Clause ‘‘cases as holding that a

State may reasonably regulate interstate or foreign

shipments of liquor for good cause’’ (224 F.Supp.

557, emphasis by the Court). The Court had previously

noted that ‘‘none of the state’s licensing provisions fit

the proposed operations of the plaintiffs’? (224

F.Supp. 551) and emphasized that situation in the

final ruling that (224 F.Supp. 557) :

‘6... the injunction is limited to activities of the

State in enforcing the Alcoholic Beverage Control

statutes as they now exist. If the State of Cali-

fornia sees fit to pass statutes and regulations di-

rected towards reasonable regulation of plaintiffs’

business, this will be another case for another day.”’

By the enactment of the statute here in question, the

State of Texas has attempted to regulate the business

of selling liquor for export from United States Customs

Bonded Warehouses. There was no comparable stat-

ute either in New York or California. In the phrase-

ology of the California Federal court, this should have

been viewed as ‘‘another case for another day.”’

The Texas court, however, neither approached the

case in that manner) nor applied the general princi-

ples laid down and approved in this Court. The State

court failed to construe Commerce Clause cases as hold-

ing that a state may regulate; it sought no ‘“‘accommo-

dation of the Twenty-First Amendment with the Com-

merce Clause’’ as this Court had made; it disregarded

this Court’s view of the Twenty-First Amendment ex-

pressed in cases which have ‘‘remained unquestioned’’

(377 U.S. 330, 84 S.Ct. 1297) ; it ignored the fact that

‘‘quite independently of the Twenty-First Amend-

ee

sa ci

hap a a le a ti

Pe eee a eS eS ee eee

ment, the Court has sustained a State’s power within

the confines of the Commerce Clause to regulate and

supervise the transportation of intoxicants through its

territory’’ (Ftn. 10, 377 U.S. 331, 84 S.Ct. 1297). Never-

theless it was upon the basis of this Court’s decisions

discussed above that the State court held the Texas

regulatory statute unconstitutional ‘‘in the face of the

Commerce Clause and the Supremacy Clause, as set

out in the Idlewild and California Ammex cases’’ (384

S.W.2d 772 and Appendix, p. 50).

It is, therefore, respectfully submitted that the State

court has decided Federal questions of substance in

a way not in accord with applicable decisions of this

Court and that grant of certiorari is clearly indicated

here by such decisions as J. F. Fitzgerald Construction

Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed.

1316 (1945), and Missouri Pacific Railroad Company

v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.

2d 752 (1964).

In State of Alaska v. Artic Maid, et al., 366 U.S. 199,

81 S.Ct. 929, 6 L.Ed.2d 227 (1961), this Court granted

certiorari because of the importance of the case to the

State of Alaska. The present case is equally, if not

more, important to the State of Texas., Unless the pe-

tition is granted, the entire system of regulation of the

sale of alcoholic beverages within thé State is jeopar-

dized. This is not a small operation such as this Court

was considering in Idlewild nor a situation where ex-

isting and established Federal supervision could be

assumed to prevent unlawful diversion within the

State as the different type warehouses and the 60-foot

strip provided in the California case.

The Respondent liquor sellers have spread their op-

ae ae

erations along the entire Texas-Mexican border from

Brownsville to El Paso. Their effect on the regulated

liquor industry is demonstrated by the fact that Chivas

Regal Scotch, the most popular brand handled by

Respondents (S.F. 280), sells in State-authorized tax-

paying package stores at from $8.50 (S.F. 551) to

$9.85 a fifth (S.F. 281), while Respondents sell the

same identical liquor (S.F. 553; Int.Ex. 4) at from

$4.00 (S.F. 214) to as low as $3.33 a fifth (S.F. 280).

When it is recalled (see pp. 26-27, supra) that Re-

spondents package in paper sacks, deliver on open

streets during rush hours, in heavy traffic, at places

where there is ample opportunity for either persons in

cars or pedestrains to accept delivery of liquor,but re-

main in Texas, it appears unquestionable that the situ-

ation constitutes an open invitation to smuggling, tax

evation, or tax avoidance. A paper sack with two fifths

of Scotch in it does not, on the outside, present any

marked difference in appearance from another paper

sack containing a quart of milk or a carton of eggs.

Unfortunately there are many persons who are not

blessed with a standard of honesty so high that they

will pay $8.50 or $9.00 to purchase legally what they

can acquire for $3.00 or $4.00 by the simple expedient

of placing an order with one of the Respondents and

selecting a delivery time during rush hour when they

can pick up their liquor, go to a supermarket, turn

down an alley, drive into a filling station, or t_simply

fall in with the flow of the traffic moving in the oppo-

site direction.

Unless this Court grants the present petition for

certiorari, there is no doubt that the Texas situation

will continue, and, in all reasonable probability, it will

worsen. The significance of the case, however, is not

—35—

limited to Texas. If this Court denies certiorari here,

that ruling—whether justifiably or not—would be

urged and probably accepted as preventing either New

York or California from regulating the export sellers

in those states. State regulation may not be so n

sary there, but the implication of a right in such busi-

ness to operate free of state control which would r

sult from a denial of certiorari would encourage\the)

establishment of the same type of businesses along the.

entire Canadian border where duplicates of the Texas

situation could easily and likely would result. Not only

would the regulated liquor industry in every border

state suffer, but the states themselves would be forced

either to accept a situation where tax-free, uninspected,

unregulated liquor is readily available for being re-

tained in or brought illegally back into the state or to

provide constant and close supervision of the entire

state boundary.

=

These are operations from which the government

derives no benefit—by tax or otherwise. They seek to

use Federal authority to secure freedom from State

control in a type of transaction which Federal law

neither was designed nor is adapted to regulate. Local

sales of liquor, one, two or three fifths at a time, is—

or ought to be—a State matter, even in a border town.

That is particularly true in Texas, where Respondents

admit that they make no sales in Mexico (S.F. 172),

that neither they nor their agents.or employees have

ever transported any liquor across an international

boundary (S.F. 168, 283, 337), that they have never

shipped any liquor consigned to anyone in a foreign

country (S.F. 168, 314, 337), and that they have no

control over the liquor which they sell after its deliv-

_36—

ery to the purchaser within the State of Texas (S.F.

286).

It seems highly unlikely that this Court in making

its rulings in the Idlewild case intended to sanction

and approve the operations and the conditions which

exist in Texas today. The State court, however, has so

interpreted this Court’s decisions.

WHEREFORE, Petitioners pray that this Court

grant petition for certiorari and, upon final hearing

of this case, reverse the judgment of the Court of Civil

Appeals for the Third Supreme Judicial District of

Texas, clarify the meaning of previous decisions, and

uphold the State’s authority to regulate.

Respectfully submitted,

WAGGONER CARR ©

Attorney General of the

_. Howanp M. Fenver

Assistant Attorney Gener-

al of the State of Texas

Courts Building

Austin, Texas

Or COUNSEL: - Attorney for Petitioners

J. Sam WINTERS The Texas Liquor Control

Mary JoE CARROLL Board and Coke R. Ste-

CLARK, THomMas, Harris, venson, Jr., Administra-

Dentus & WINTERS tor of the Texas Liquor

Capital National Bank Control Act

Building

P. O. Box 1148

Austin, Texas

CERTIFICATE OF SERVICE

Howarp M. Fenper, a member of the bar of the

Supreme Court of the United States, hereby certifies

that he is attorney of record for the Petitioners in the

above entitled action, and that he has served a copy of

the above and foregoing motion upon Respondents by

mailing same to Mr. R. Dean Moorhead, First Federal

Building, Austin, Texas, Attorney for Respondents,

said copy being mailed by regular United States ma}

with the postage duly paid thereon, on this /A..

day of October, 1965.

a |

CONTENTS OF APPENDIX

Page

Opinion of the Court of Civil Appeals for the Third Su-

preme Judicial District of Texas at Austin, Texas,

Liquor Control Board v. Ammex Warehouse Company,

Ming We Tien B Ts ck cnc ccccics ddehbn un. Ute. 41

Federal Statutes and Regulations Under Which Respond-

ents assert their Warehouse Operations are Canducted

PR UE nen av dodsuesuess baceoesached 57

et SIE PIR Shs acne ie an os a ee eee oa 58

Title 19, Code of Federal Regulations, Customs Regula-

a A ees ON ioe als CEE PORES Fee, 60

Title 19, Code of Federal Regulations, Customs Regula-

I CURIE 5 so a cole RET Cana o oae cece ded. 61

Federal Statute and Régulation Under Which New York

ee Export Liquor Sellers’ Warehouses are

mn ~~,

Ss ain 5 Pk Canin sch ean es Bean 63

Title 19, Code of Federal Regulations, Customs Regula-

Ninn WAI Silocs. 1 6b; (USSESUAELY, MURSTERE 2 67

\

Definition of““Common Carrier” and Related Provisions

Title~19, Code of Federal Regulations. Customs Regula-

7 vena 18.1 AE ot ORNS 1s Secon 70

OCG ese. Sera ae oe 72

de

cs —39—

CONTENTS OF APPENDIX (Con’d)

Page

Definition of “Exportation”

Title 26, Code of Federal Regulations, Exportation of

Liquors, I ke a baa: FP Bs RS tt 74

Evidence of Exportation

Title 26, Code of Federal Regulations, Exportation of

Liquors, RES TE ey oes ae ee Oe FOL 75

Excerpt Showing Federal Questions as Raised in Brief

submitted by by Petitioners as Appellants in the Court of

Civil Appeals for the Third Supreme Judicial District of

“SNS S235 iS dS REE TE POS ei 76

* STATE APPELLATE COURT DECISION

IN QUESTION |

In THE CouRT oF Crvi. APPEALS, THIRD SUPREME

JUDICIAL DisTRICT OF TEXAS, AT AUSTIN

No. 11,248

Texas Liquor ConTROL BOARD ET AL.,

Appellants

V8.

AMMEX WAREHOUSE COMPANY, INCORPORATED ET AL.,

Appellees

From THE District Court oF Travis County, 53RD

JupiciaL District, No. 132,400, HonoraBLzE

HERMAN JONES, JUDGE.

This case involves the constitutionality of a State

law, a statute amending the Texas Liquor Control Act

to provide a permit for and to regulate the retail sale

of alcoholic beverages for export. Appeal is from a

judgment of the trial court in an action which consol-

idated five separate but substantially identical suits

filed on behalf of seven firms operating seventeen liq-

‘uor selling establishments in the six major Texas

towns on the Mexican border. Jb

Each pétition sought declaratory judgment holding

the amendatory statute unconstitutional and perma-

a .

nent injunction prohibiting the Texas Liquor Control

Board, its Administrator, agents, and employees from

enforcing or attempting to enforce the new law. Sep-

arate temporary injunctions were issued but the five

cases were formally consolidated for trial on the mer-

its. The judgment of the trial court granted to the

plaintiffs all the relief sought, declaring the statute

unconstitutional and enjoining the Texas Liquor Con-

trol Board, its Administrator, agents, and employees

from enforcing the statute or in any way interfering

with the conduct of plaintiffs’ businesses. The State of

Texas, on behalf of the defendants, immediately filed

notice of appeal. At the plaintiffs’ request the trial

court filed extensive findings of fact and conclusions

of law.

The appeal is based on ten points assigned as error,

and, in effect are that the court erred in holding that,

as a matter of law, Federal, Constitutional and Statu-

tory provisions prohibit State regulation of appellees’

businesses, that there is no evidence, or the evidence

is insufficient to support the trial court’s holding that

appellees are exporting liquor, and no evidence or the

evidence is insufficient to support the trial court’s

holding that appellees are conducting their busi-

nesses in compliance with Federal regulations; that

the court erred in failing to uphold the constitution-

ality of the Statute in question; that there is no evi-

dence, or the evidence is insufficient, to support the

trial court’s holding that it would be impossible for

appellees to conduct their businesses in compliance

with the Statute in issue, and that there is no evidence

or the evidence is insufficient to support the trial court’s

holding that the amendatory Statute in question would

create conflict with Federal Law.

ae

The Statute brought into question by this suit (Acts

1963, 58th Leg., Ch. 108, p. 196) as codified (Article

666-15 (7b) V.A.P.C.) reads:

“*(Tb) United States Bonded Liquor Export

Permit. A United States Bonded Liquor Export

Permit shall authorize the holder thereof to:

(a) Purchase liquor in bond from holders of

Texas Wholesalers’ Permits or purchase liquor

from distillers, brewers, wineries, wine bottlers,

rectifiers, and manufacturers who are holders of

Nonresident Seller’s Permits and import into the

State of Texas at a United States bonded dock

such liquor in transit for exportation purposes.

(b) Transport such liquor from the United

States bonded dock at point of entry under United

States Bond to a United States bonded warehouse

within the State of Texas.

(ec) Warehouse such liquor under United States:

bond.

(d) For the purpose of exportation only, solicit

orders for, take orders for, and accept payment

for any quantity of said liquor in unbroken orig-

inal containers.

(e) Cause such liquor to be withdrawn from a

United States bonded warehouse for exportation,

in compliance with United States Custom regula-

tions, and delivered to a public common carrier

for transportation, in compliance with such car-

rier’s established rate schedule, into the country

of export by such common carrier or by such com-

mon carrier’s affiliated common carrier in the

country of export, for delivery to the purchaser

at a designated address outside the continental

limits of the United States or for delivery to a

named qualified person at a designated address

outside the continental limits of the United States.

—43—-

~

The annual state fee for a United States Bonded

Liquor Export Permit shall be Seven Hundred

Fifty Dollars ($750).

The privileges authorized by this Section are cu-

mulative and not in lieu of requirements of Fed-

eral Law in the conduct of such operations. It is

specifically provided, however, that permits under

this Section shall not be required for the whole-

sale export of United States bonded liquor by the

holder of any other type of permit which, under

existing Statutes and the rules and regulations

of the Texas Liquor Control Board, authorizes

the wholesale exportation of liquor in compliance

with Federal Law.”’

The idea of selling tax and duty free liquor ‘‘for

export .. . without State and Federal taxes was de-

veloped by Hal G. Ward who founded Ammex Ware-

house Company, and secured from the Texas Liquor

Control Board a wholesalei’s permit provided for in

the Act, and filed bonds to operate a Class 2 and 8

bonded warehouse, and began icicle at Laredo,

Texas in June, 1961.

Shortly thereafter the Liquor Board cancelled Am-

mex’s wholesale permit; such permits authorize the

exportation of liquor but only in wholesale quantities.

The appellees generally sell in quantities of one to

three bottles.

Certain phases of this litigation were before this

Court in Texas Liquor Control Board v. Jones, 378

S.W.2d 898, and before our Supreme Court in Ammex

Warehouse Company v. Archer, 381 S.W.2d 478, and

the history of the subject matter was recited and dis-

cussed and we make reference to the cases, and will

endeavor to confine our consideration to the issues in

aay Y ae

Pe ee eee

er Oh Cet Ma oe ad

a :

the instant case and not restate issues disposed of in

the decision by the Supreme Court.

There is now pending Civil Action No. 1466 in the

United States District Court for the Western District

of Texas, Austiy Division, Ammex Warehouse Com-

pany, Ine. et al. v. Texas Liquor Control Board et al.

Appellees take the position in this present suit on

appeal that the cases of Hostetter v. Idlewild Bon-

Voyage Liquor Corporation, —- U.S. —, 84 S.Ct. 1293

(1964) and Department of Alcoholic Beverage Con-

trol for State of California v. Ammex Wareheuse Co.

of San Ysidro, Inc., — U.S. —, 84 S.Ct. 1657 (1964)

are controlling and that the 21st Amendment to the

Constitution does not permit the State to regulate

liquor passing through its territory, under the super-

vision of the United States Bureau of Customs acting

under Federal Law for sale and delivery at foreign

destinations.

Appellees contend further that the Commerce Clause,

the Export-Import Clause and the Supremacy Clause

of the Constitution of the United States preclude ap-

plication of House Bill to them and their businesses

and make such Bill unconstitutional as applied to their

businesses, and that the bill is unconstitutional and

unenforceable because it is ‘‘so vague, uncertain, am-

biguous and unclear that it does not inform with rea-

sonable certainty those persons who would be subject

to its provisions as to what it means.”’

The Board takes the position that the evidence fails

to show exportation in fact.

The appellees maintain warehouses and sales areas

in various border towns in Texas, where they take

sill.

“we

orders and receive payment for liquor and make de-

liveries in the towns where such businesses are located.

No sales are made in Mexico and no liquors are trans-

ported across the international boundary and appellees

had no control over the liquor after its delivery to

purchasers, who transport the liquor. Such activities,

appellants contend, do not fulfill the legal meaning of

‘“‘export”’ as given in Swan & Finch Company v. United

States, 190 U.S. 143, 23 S.Ct. 702, 47 L.Ed. 984, and

as the leading case Empresa Siderurgica, 8.A. v. Coun-

ty of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276.

Appellants say that the holding of liquor in ‘‘bond’’

does not establish exportation by appellees, and the

actions and conduct by the appellees do no more than

show an intent to export and that the receipt of liquor

for export and the ultimate exportation does not es-

tablish the business of exporting liquor and cite Joy

Oil Company v. State Tax Commission of Michigan,

337 U.S. 286, 69 S.Ct. 1075, 93 L.Ed. 1366.

Appellants assert that taxation is not involved in

this case and that the fundamental question is the

State’s right to regulate the businesses of appellees

and not to tax the liquor while in bond, and that there

is no factual or legal basis on which appellees can be

designated as exporters.

By points IV and V appellants claim that saeelince?

testimony shows violation of Customs Statutes, and

there is no evidence, or that the evidence is insufficient

to support the Court’s holding that appellees are con-

ducting their businesses in compliance with Federal

regulations.

There is no dispute as to the facts in the case. Ap-

pellees receive their liquor by the case, and except for

oe

Border Bonded, the sales are in quantities of one to

three bottles per customer. The liquor is removed from

the cases in which it was received and packagd in

paper sacks for delivery. Border Bonded sells only in

case lots.

Appellants’ VI point in that the trial court erred

in failing to uphold the constitutionality of the Amend-

atory Statute in question and by points VII, VIII, IX

and X that there is no evidence, or that the evidence

is insufficient to support the trial court’s holding, that

it would be impossible for appellees to conduct their

businesses in compliance with the Statute in question

and would create a conflict with Federal Law.

Appellants’ view of this litigation is that the law

is entitled to the presumption of validity and that the

burden of proof was on appellants as plaintiffs in the

trial court, and cite among other cases Duncan v. Gab-

ler, 147 Tex. 229, 215 S.W.2d 155, and that the Federal

government has given to. States broader regulatory

powers over alcoholic beverages than to other items of

commerce and cite Clark Distilling Company v. West-

ern Maryland Railway Company, 242 U.S. 311, 37

S.Ct. 180, 61 L.Ed. 326, and United States v. Frank-

fort Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed.

951.

As we have stated, most of appellees’ liquor is pack-

aged in paper sacks and carted to the walkway at this

end of the bridge and lined up on the sidewalk await-

ing delivery.

Deliveries are made both to vehicles and to pedes-

trians and in most instances by cartmen on both sides

of the street by Ammex and Kings Mart on one side

and other appellees on the other side

—

The traffic, especially in evening time, is very heavy

across the bridge and there is a possibility that some

bottles might be smuggled back into Texas, but we have

not had our attention directed to any such violations

by customers who have purchased liquor for export.

It is also possible that some purchasers would take

liquor into Mexico and return with it to Texas and

avoid Federal tax and pay only the State Tax. This

would be accompanied by a legal risk.

The nature of the traffic and not its incidents, deter-

mines its character.

T. & N.O. Ry. Co. v. Sabine Tram Co., 227 U.S. 111,

33 S.Ct. 229.

Appellees maintain stocks of whisky and cigarettes

on which no Federal taxes or duties and no Texas

taxes have been paid, because such merchandise has

been brought to the warehouses and stored there in

bond, pursuant to applicable regulations of the U.S.

Customs Bureau.

The liquor is in the sole custody of the customs of-

ficers stationed at the warehouses, who, under an ar-

rangement approved by the Bureau, appellees reim-

burse the United States for the salaries paid to such

officers, who only handle the stored liquor.

The warehouses are located in buildings that are

divided into a bonded warehouse area and a store area

connected by locked doors, with one key held by cus-

toms officers and the other by employees of appellees,

the latter work only in the store area. No whisky is

kept in the store area. Customers are not permittedsin

the warehouse area.

Ordinarily .sales are in lots of.three bottles or less.

a Se

’

(The Mexican Government allows one entering Mex-

ico to bring three bottles of liquor per person, per

day.)

A purchaser of liquor orders liquor on forms. ap-

proved by the Bureau and pays appellees for such and

is given a receipt. Other forms are given to the cus-

toms officers, who withdraw the whisky called for in

the forms and make entries in the warehouse records.

The liquor is delivered to a bonded cartman, who

carries the liquor in bond to the customs station at the

end of the international bridge.

The purchaser presents his receipt and is handed

the whisky he has purchased and delivery is made un-

der the supervision of the customs officer. The ‘Whisky

is carried into Mexico and a form certifying that the

whisky has been exported is signed by the customs of-

ficer, which is placed with the other records that are

kept by the Bureau.

The above outlined procedure is similar to that set

out in the cases in which Ammex is named, hereinabove

cited. In the Hostetter case the manner of delivery is

somewhat different, in that the liquor is placed on the

aircraft and not given to the purchaser until he lands

on foreign soil.

We believe that the procedure in use by appellees is

in substantial compliance with that set out in the cases

referred to.

The trial court made extensive findings of fact and

conclusions of law which we have read and. considered

and believe are supported by the record as a whole and |

justified by law.

4 Tex.Jur.2d 333.

As may be seen,-the law in question seeks to confine

appellees’ purchases from wholesalers holding permits

from Texas and to make deliveries by common carrier.

We believe that House Bill 782 if complied with in its

entirety, would be an economic impossibility, and

would go further than to regulate, but would prohibit

appellees from carrying on their businesses.

The appellees are not immune from Texas law or

from the Texas Liquor Control Act, and if they should

disregard their bonded procedure, contrary to Federal

Law and regulation, and divert some of their liquor

into Texas, they would be subject to prosecution, apart

from House Bill 782.

We believe that the Statute is in the face of the

Commerce Clause and the Supremacy Clause, as set

out in the Idlewild and California Ammex eases, supra.

The judgment of the trial court is affirmed.

Roy C. Archer, Chief Justice

Affirmed

Filed: December 2, 1964.

i.

In THE Court or Crvm. Apprats, THIRD SUPREME

JupicraL District or Texas,“ar AvusTIN

No. 11,248

Texas Liquor ContTroL Boarp ET AL.,

7 _ Appellants

vs.

AMMEX WAREHOUSE CoMPANY, INCORPORATED ET AL.,

Appellees

From THE District Court or Travis County, 53RD

JupiciaL District, No. 132,400, HonoraBLe

HERMAN JONES, JUDGE.

CONCURRING OPINION

In an Amicus Curiae brief the statement is made

that, ‘‘The State of Texas is seeking to supervise and

regulate the transportation of liquor through its ter-

ritory for the purpose of guarding against a diversion

of liquor into domestic channels, and the Liquor: Con-

trol Board has both alleged and proved the diversion

of appellees’ merchandise to users within the State of

Texas. Delivery is made in Texas.’’

a

If there was in this record any evidence which shows

that any liquors, at least an¥significant quantity of

liquors, sold by appellees for export was consumed in

Texas or diverted for use in Texas, or that there was

any reasonable likelihood that such might occur, then

—51—

—_

I would sustain all of the regulations adopted by the

State which were reasonably calculated to prevent such

diversion. @learly Texas has authority to so protect

itself. Ziffrin v. Reeves, 308 U.S. 182, 60 S.Ct. 163, 84

L.Ed. 128.

The same brief states that the entire State Regu-

lated Liquor Industry along the Rio Grande Valley

is vitally interested in sustaining the statutes here at-

tacked.

If the Liquor Control Board, its agents, and all of

the interested liquor dealers along the border have not

during this controversy been able to show that one bot-

tle of liquor certified by the United States export of-

ficial as having been exported to Mexico was not in

fact exported or that it has in some manner been con-

sumed or re-sold in Texas, then it seems to me that

the patently foolproof method used by appellee to ex-

port this liquor is in fact foolproof.

I do not believe that the fact of ‘‘delivery in Texas”’

under the described circumstances is any more proof

of diversion, or danger of diversion, than in the Am-

mex-California ease where delivery was made in a strip

under the joint jurisdiction of the State and Federal

Governments.

Under the facts of this case, as presently appearing,

I am of the opinion that the requirements of the Act

before us are unreasonable as applied to appellees. I

’ eoncur in the judgment.

Robert G. Hughes, Associate Justice

Filed; December 2, 1964.

es

Consolidated Cause No. 132,400

AMMEX WAREHOUSE ) Inv tHe 58rp Distaicr

Company, Inc., ET AL.

CouRT OF

vs.

Travis County, Texas

Texas Liquor ContTROL

Boab, ET AL.

we YY YS

FINAL JUDGMENT

On the 7th day of November, 1963, came on to be

heard the above styled and numbered cause, which is

a consolidated cause (Causes No. 133,138, 133,535, 133,-

675 and 133,602 having been, prior to trial, consoli-

dated with Cause No. 132,400):

And came the following Plaintiffs in person and by

and through their officers and attorneys:

1. Ammex Warehouse Company, Inc. (No. 132,400).

2. Vicente Garza, Jr. and Jorge Garza dba Vir

Warehouse Company. (No. 133,138).

3. Albert Anzaldua dba Andy’s Custom Bonded

Warehouse, Francisco C. Gonzalez and Cesar Salinas,

partners dba G & S Bonded Warehouse, and Sam

Leland Glass, Sam Glass Pate and Olin Earl Bra- -

shear, Jr., partners dba King Mart Export Company.

(No. 133,602).

4, Alfonso Casso, Raul Casso, Raul Casso, Jr. and

Mrs. Alfredo San Martin, partners dba Border Bond-

ed Warehouse. (No. 133,535).

=

5. Halem Ayoub and Sam Wardy, partners dba

Ayoub & Wardy. (No. 133,675).

And came the Defendant Coke a Jr. in per-

son and by the Attorney General and the Defendants -

Texas Liquor Control Board by the Attorney General,

and Harry J. Feldman and Charles B. Feldman, as

Intervenors, by their attorneys, and all Plaintiffs, De-

fendants and Intervenors thereupon announced ready

for trial;

And, no jury having been demanded, said consoli-

dated cause proceeded to trial before the Court; and

the Court, after hearing all of the evidence, consider-

ing the pleadings, hearing the arguments of counsel,

and studying the briefs submitted to him by all parties,

finds and concludes as follows:

1. The Texas Liquor Control Act, as amended by

House Bill 782, Acts of the 58th Leg. (1963), Ch. 108,

p. 196, codified as Article 666-15(7b), Vernon’s An-

g / Rotated Penal Code, cannot constitutionally be applied

\to Plaintiffs so long as they are engaged in the ‘“‘in

bond’’ liquor business which is hereinafter described.

2. The law and the facts are with Plaintiffs.

ACCORDINGLY, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED by the Court as fol-

lows:

1. Plaintiffs are hereby granted a permanent in-

junction against the Texas Liquor Control Board and

Coke R. Stevenson, Jr., Administrator of said Board,

jointly and severally, and their agents, employees, rep-

resentatives and successors in office; and said persons

i

are hereby permanently enjoined from in anywise,

directly or indirectly, interfering with, controlling or

regulating any or all of the plaintiffs (namely Am-

mex Warehouse Company, Inc.; Vicente Garza, Jr.

and Jorge Garza, partners dba Vir Warehouse Com-

pany; Albert Anzaldua dba Andy’s Custom Bonded

Warehouse; Francisco C. Gonzalez and Cesar Salinas,

partners dba G & S Bonded Warehouse; Sam Leland

Glass, Sam Glass Pate and Olin Earl Brashear, Jr.,

partners dba King Mart Export Company; Alfonso

Casso, Raul Casso, Raul Casso, Jr. and Mrs. Alfredo

San Martin, partners Border Bonded Warehouse; and

Halem Ayoub and Sam Wardy, partners dba Ayoub

& Wardy) :in the operation of their respective busi-

nesses anywhere in the State of Texas, as such business

is defined herein. The injunction here granted extends

to and enjoins said persons from enforcing or in any-

wise attempting to enforce the Texas Liquor Control

Act, as amended by House Bill 782, Acts of the 58th

Leg. (1963), Ch. 108, p. 196, codified as Article 666-15

(7b), Vernon’s Annotated Penal Code, against per-

sons, firms or corporations when they are supplying

liquor in bond to plaintiffs or transporting it in bond

to Plaintiffs’ warehouses or storing it in bond (the

bonds referred to being bonds to the United States or

its agencies pursuant to procedures set forth in the

_ laws of the United States), and from in anywise in-

directly doing that which they, and each of them, are

directly enjoined from doing herewith. The business

of the Plaintiffs, as referred to herein, is that of im-

porting liquor into the State of Texas for exportation

only, on which liquor no federal or State taxes, or

United States customs duties have been paid because

such liquor has been bought imported, stored, trans-

— we

ported, handled, sold and exported while under bond

to the United States or its agencies. In the event Plain-

tiffs should ever withdraw from bond any liquor while

within the State of Texas under circumstances where-

by they would make a delivery or use of the liquor.so

imported’ by them within the State of Texas, then

Plaintiffs will be engaging in a business which will not

be protected by this judgment or by the injunction

granted herein.

2. All costs of suit are adjudged against Defendants

and Intervenors, jointly and severally, for which ex-

ecution may issue. ,

SIGNED AND FILED this the -___ day of March,

1964, at _.__ o’clock __ m.

R. Dean Moofthead

An Attorney for Plaintiffs

Waggoner Carr

Attorney General of Texas

Brady Coleman

Assistant Attorney General

Attorneys for Defendants

Clark, Thomas, Harris,

Denius & Winters

Mary Joe Carroll

Attorneys for Intervenors

—

shale wie Sabb sets

FEDERAL STATUTES AND REGULATIONS.

UNDER WHICH RESPONDENTS ASSERT

THEIR WAREHOUSE OPERATIONS —

ARE CONDUCTED

19 U.S.C.A. 1555

Buildings or parts of buildings and other inclosures

may be designated by the Secretary of the Treasury

as bonded warehouses for the storage of imported mer-

chandise efftered for warehousing, or taken possession

of by the collector, or under seizure, or for the manu-

facture of merchandise in bond, or for the repacking,

sorting, or cleaning of imported merchandise. Such

warehouses may be bonded for the storing of such

merchandise only as shall belong or be consigned to

the owners or proprietors thereof and be known as

private bonded warehouses, or for the storage of im-

ported merchandise generally and be known as public

bonded warehouses. Before any imported merchandise

not finally released from customs custody shall be

stored in any such premises, the owner or lessee there-

of shall give a bond in such sum and with such sureties

as may be approved by the Secretary of the Treasury

-to secure the Government against any_loss or expense

connected with or arising from the deposit, storage,

or manipulation of merchandise in such warehouse.

Except as otherwise provided in this chapter, bonded

warehouses shall be ‘used solely for the storage of im-

ported merchandise and shall be placed in charge of

a proper officer of the customs, who, together with the

proprietor thereof, shall have joint custody of all mer-

chandise stored in the warehouse; and all labor on the

merchandise so stored shall be performed by the own- |

<n... >

er or proprietor of the warehouse, under supervision

of the officer of the customs in charge of the same, at

the expense of the owner or proprietor. The compen-

sation of such officer of the customs and other customs

employees appointed to supervise the receipt of mer-

chandise into ary such warehouse and deliveries there-

from shall be reimbursed to the Government by the

proprietor of such warehouse.

19 U.S.C.A. 1562

Unless by special authority of the Secretary of the

Treasury, no merchandise shall be withdrawn from

bonded warehouse in less quantity than an entire bale,

eask, box, or other package ; ; or, if in bulk, in the en-

tire quantity imported or in a quantity not less than

one ton weight. All merchandise so withdrawn shall

be withdrawn in the original packages in which im-

ported unless, upon the application of the importer,

it appears to the collector that it is necessary to the

safety or preservation of the merchandise to repack

or transfer the same: Provided, That upon permission

therefore being granted by the Secretary of the Treas-

ury, and under customs supervision, at the expense

of the proprietor, merchandise may be cleaned, sorted,

repacked, or otherwise changed in condition, but not

manufactured, in bonded warehouses established for

that purpose and be withdrawn therefrom for expor-

tation to a foreign country or for shipment to the

Virgin Islands, American Samoa, Wake Island, Mid-

way Islands, Kingman Reef, Johnston Island, or the

island of Guam, without payment of the duties, or for

consumption, upon payment of the duties accruing

thereon, in its condition and quantity, and at its weight,

- =

BT. A reer Dis bb het CN Ae alte A BEALE AHO Ate tes ae

built

at the time of withdrawal from warehouse, with sueh

additions to or deductions from the final appraised

value as may be necessary by reason of change in con-

dition. The basis for the assessment of duties on such

merchandise so withdrawn for consumption shall be

the adjusted final appraised value, and if the rate of

duty is based upon or regulated in any manner by the

value of the merchandise, such rate shall be based up-

on or regulated by such adjusted final appraised value.

The scouring or carbonizing of wool shall not be con-

sidered a process of manufacture within the provisions

of this section. Under such regulations-as the Secre-

tary of the Treasury shall prescribe, imported mer-

chandise which has been entered and which has re-

mained in continuous customs custody may be ma-

nipulated in accordance with the provisions of this

section under customs supervision and at the risk and

expense of the consignee, but elsewhere than in a bond-

ed warehouse, in cases where neither the protection of

the revenue gor the proper conduct.of customs busi-

ness requires that such manipulation be done in a

bonded warehouse.

DEFINITIONS OF CLASS 2 AND

CLASS 8 WAREHOUSES FROM TITLE 19,

CODE OF FEDERAL REGULATIONS

CUSTOMS REGULATIONS 19.1, CR 380-381

Class 2.—Importers’ private bonded warehouses

used exclusively for the storage of merchandise be-

longing or consigned to the proprietor thereof. A ware-

house of class 4 or 5 may be bonded exclusively for the

storage of‘ goods imported by the proprietor thereof,

in which case it shall be known as a private bonded

warehouse.

ae, Ta

Class 8.—Bonded warehouses established for the pur-

pose of cleaning, sorting, repacking, or otherwise

_ changing in condition, but not manufacturing, im-

ported merchandise, under customs supervision and

at the expense of the proprietor.

— >

MANIPULATION IN BONDED WAREHOUSES

TITLE 19, CODE OF FEDERAL REGULATIONS,

CUSTOMS REGULATIONS, 19.11 CR 386-387

19.11 Manipulation in bonded warehouses and else-

where.—(a) So far as applicable, the general provi-

sions of the regulatiqns governing warehouses bonded

for the storage of imported merchandise shall apply

to bonded manipulation warehouses and to other des-

ignaied places of manipulation.

(b) Merchandise to be manipulated under section

062, Tariff Act of 1930, as amended, may be entered

on customs Form 7502 and sent directly to a storage-

manipulation warehouse. °

(¢) Merchandise entered. for warehouse may be

transferred to a storage-manipulation warehouse; or

merchandise entered for storage-manipulation ware-

houses may be transferred after manipulation to the

storage portion of the same warehouse, to another stor-

age warehouse, or to a manufacturing warehouse of

Class 6. °

(d) The application to manipulate, which shall be

filed on customs Form 3499 with the collector having

jurisdiction of the warehouse or other designated place

of manipulation, shall describe the contemplated ma-

nipulation in sufficient detail to enable the collector to

determine whether the imported merchandise is to be

cleaned, sorted, repacked, or otherwise changed in con-

dition, but not manufactured, within the meaning of

section 562, Tariff Act of 1930, as amended. If the

collector is satisfied that the merchandise is to be 80

manipulated, he may issue a permit on customs Form

3499, making any necessary modification in such form.

Manipulation resulting in a change in condition of the

~~ =

merchandise which will make it subject to a lower rate

of duty or free of duty upon withdrawal for consump-

tion, is not precluded ved the provisions of such section

562.

(e) No merchandise shall be manipulated elsewhere

than in a bonded warehouse unless the merchandise

has been regularly entered for consumption or ware-

house and is of a class entitled to the warehousing

privilege under Section 557, Tariff Act of 1990, as

cf) — OH pTiAneS WHER the proviaiona ef Para:

) of Tate eeetion, MARI pTIAted merehanidine

Wy he Avedon maatpitated he@lire Wellidina weal (Gian

where the callectar ta aatiafied that thie will net en

danger the vevenne ar interfere with the efficient eon

duct of customa business, The merchandise remaining

in the warehouse shall be properly repacked after each

manipulation,

(g) Manipulated merchandise may be withdrawn

under any form of withdrawal, but no withdrawal,

shall be accepted for less than an entire repacked

package. Each type of withdrawal filed shall contain

a summary statement indicating the quantity in the

Aner WHEAMEAWR fae @ the weit diaweal what

ippn my ao 1 be Henidated fh

AdcOANeS With section 16.0(e), (Sees. 562, 46

Stat. 743, 745, as amended; 19 UVS.0.A. 1556, 1562.)

—~+62——

BELO: \ PME ES AMN

FEDERAL STATUTE AND REGULATION

UNDER WHICH NEW YORK AND

CALIFORNIA EXPORT LIQUOR SELLERS’

WAREHOUSES ARE CONDUCTED

19 U.S.C.A. 1311

nal-reventie tax, and intended for exportation without

belt changed with duty, and without ha ah ite

Teralreweniie atiainy) afficad Hhereta, alall, under aah

Wrilatione aa the Beoretary of the Tyaaauew aay

wonhe, tn onder to he ao MAnUMACtUREd and

hyo and nares tT) — Wareliieen aid:

thowe Kaown (leaiga ‘Treasury Regu

lations as bonded warehouses, class aix; Provided, That

the manufacture Of such articles shall first give satis-

factory bonds for the faithful observance of all the

provisions of law and of such regulations as shall be

prescribed by the Secretary of the Treasury: Provided

further, That the manufacture of distilled spirits from

grain, starch, molagses, or sugar, including all dilu-

tions or mixtures of them or either of them, shall not

» be permitted in such manufacturing warehouses.

whall be Bhovatran,

we wall be fatten fay HAW AMA Fe:

hate Ran Wate He AE ERE PRApON

vith hall be tet far Prat

requirements relating to revente stampa. 8

No flour, manufactured in a bonded manufacturing

—_,.

warehouse from wheat imported after ninety days aft-

er June 17, 1930, shall be withdrawn from such ware-

house for exportation without payment of a duty on

such imported wheat equal to any reduction in duty

which by treaty will apply in respect of such flour in

the country to which it is to be exported.

Any materials used in the manufacture of such

warehouse; but this privilege shall not be held to ap-

ply to implements, machinery, or apparatus to be used

in the construction or repair of any bonded manufac-

turing warehouse or for the prosecution of the busi-

ness carried on therein.

Articles or materials received into such bonded man-

waste derived from cleaning rice in bonded warehouses

under the Act of March 24, 1874, ch: 65, 18 Stat. 24,

in said bonded warehouses may be withdrawn for do-

mestic consumption on the payment of duty equal to

the duty which would be assessed and collected by law

if such waste or by-products were imported from a

foreign country: Provided, That all waste material

may be destroyed under Government supervision. All

labor performed and services rendered under

provisions ehall be wader the supervision of & duly

denignated offfeer of the custome and at the eepense

WE The HAH Raetren,

A oareful account ahall be Kept by the callectar af

all merehandiae delivered hy him to bonded avai

facturing warehouse, and a aworn return, ver

ified by the customa officers in charge, shall be made’

by the manufacturer containing a detailed statement

of all imported merchandise used by him in the manu-

facture of exported articles.

Before commencing business the proprietor of any

manufacturing warehouse shall file with the Secretary

of the Treasury a list of all the articles intended to be

manufactured in such warehouse, and state the for-

mula of manufacture and the names and quantities of

the ingredients to be used therein,

elieeey FARO AWE

for Ure wale putpose of fmediate theretim -

Provided, That cigats manufactured in whole of to-

baeeo imported from any one country, made and man-

ufactured in such bonded manufacturing warehouses,

— 5...

0

may be withdrawn for home consumption upon the

payment of the duties on such tobacco in its condition

as imported under such regulations as the Secretary

of the Treasury may prescribe, and the payment of

the internal-revenue tax accruing on such cigars in

their condition as withdrawn, and the boxes or pack-

ages containing such cigars shall be stamped to indi-

cate their character, origin of tobacco from which

made, and place of manufacture.

The provisions of section 3433 of the Revised Stat-

“utes shall, so far as may be practicable, apply to any

bonded manufacturing warehouse established under

this chapter and to the merchandise conveyed therein.

Distilled spirits and wines which are rectified in

bonded manufacturing warehouses, class six, and dis-

tilled spirits which are reduced in proof and bottled

in such warehouses, shall be deemed to have been man-

ufactured within the meaning of this section, and may

be withdrawn as hereinbefore provided, and likewise

for shipment in bond to Puerto Rico, subject to the

provisions of this section, and under such regulations

as the Secretary of the Treasury may prescribe, there

to be withdrawn for consumption or be rewarehoused

and subsequently withdrawn for consumption: Provid-

ed, That upon withdrawal in Puerto Rico for eonsump-

tion, the duties imposed by the customs laws of the

United States shall be collected on all imported mer-

chandise (in its condition as imported) and imported

_ containers used in the manufacture and putting up of

such spirits and wines in such warehouses: Provided

further, That no internal-revenue tax shall be imposed

on distilled spirits and wines rectified in class six ware-

houses if such distilled spirits and wines are exported

—66—

.

or shipped in accordance with the provisions of this

section, and that no person rectifying distilled spirits

or wines in such warehouses shall be subject by rea-

son of such rectification to the payment of special tax

as a rectifier.

-MANUFACUTURING WAREHOUSES

TITLE 19, CODE OF FEDERAL REGULATIONS,

CUSTOMS REGULATIONS, 19.13 CR 387-388

19.13 Requirements for establishment of warehouse.

—(a) Buildings or parts of buildings and other en-

closures may be designated as bonded manufacturing

warehouses if the Bureau is satisfied that their loca-

tion, construction, and arrangement afford adéquate

protection to the revenue. Such warehouses shall be

used solely and exclusively for the purpose for which

they are bonded. The general provisions pertaining to

warehouses for the storage of bonded merchandise

shall, so far as relevant, apply to bonded manufactur-

ing warehouses.

(b) Application for the establishment of such a

warehouse shall be made to the collector of customs

for the port where the premises are situated, setting

forth the size, construction, and location of the prem-

ises, the manufacture proposed to be carried on, and

the kinds of materials intended to be stored and used

therein.

(ce) The procedure outlined in section 19.2 with re«

spect to the application to bond the premises and the

execution of the bond shall be followed.

(d) A list of all articles intended to be manufac-

__§71—

a ataalany: aie, Foe OS A al ORE eye re rx AEE eee ee ’ Sern eee oe

tured in the warehouse shall be filed in duplicate with

the collector of customs, who shall transmit one copy

to the Bureau. Such list shall set forth the specific

names under which the articles are to be exported and

under which they will be known to the trade, and shall

show the names of all the ingredients entering into

the manufacture of such articles, with the quantities

of such ingredients or materials as may be dutiable

or taxable.

(e) Proprietors of such warehouses are required to

conform strictly to the formulas filed with the bond,

subsequently, and in no instance shall an article be

permitted to be manufactured in or withdrawn from

the warehouse which does not contain all the ingre-

dients and in the quantities specified in the formula

for the manufacture of such article, or which contains

any ingredient not specified in the formula.

.(f) Manufactured articles shall be marked with the

trade name of the goods and may be marked, in addi-

tion, with the formulas and with such insignia or name

as may be indicated or desired by the purchaser, if

such additional.marking will in no manner conflict

with the requirements of the formula or present or

créate a false or misleading statement or impression.

’ (g) Each bonded manufacturing warehouse shall

- have a portion ated from the remainder of the

premises and 2d by customs locks to be used ex-

clusively for the “ol of all imported merchandise,

domestic spirits, or Other materials subject to internal-

revenue tax transfe into such warehouse for man-

ufacture. A like compartment shall be provided to be

used exclusively for the storage of products manufac-

tured in the warehouse. The premises shall be so se-

in

cured as to prevent any person from having access

thereto in the absence of the customs warehouse officer

in charge, and the goods stored therein shall be so

arranged as to give all practicable convenience to such

officer in making the required examination or taking

samples for analysis. (sec. 311, 46 Stat. 691, as amend-

ed; 19 U.S.C. 1311.)

DEFINITION OF “COMMON CARRIER”

AND REGULATIONS RELATING THERETO

TITLE 19, CODE OF FEDERAL REGULATIONS,

. 18.1, CR 363-364 ©

18.1 Carriers; application to bond.—(a) Merchan-

dise to be transported from one port to another in the

United States in bond, except as provided for in para-

graph (b), shall be delivered to a common carrier

bonded for that purpose, but such merchandise may

be transported with the use of the facilities of other

bonded or nonbonded carriers. For the purposes of this

section, the term ‘‘common carrier’’ means a common

carrier of merchandise owning or operating a rail-

road, steamship, or other transportation line or route

or a freight forwarder as defined in section 402 of part

IV of the Interstate Commerce Act, as amended (49

U.S.C. 1002(a) (5) ).

(b) Pursuant to Public Resolution 198, of June 19,

1936, and subject to compliance with all other appli-

cable provisions of this part, the collector of customs

at New York, upon the request of the party in interest,

may permit merchandise entered and examined for

customs purposes to be transported in bond between

the ports named in the resolution by bonded cartmen

or lightermen duly qualified in accordance with the

provisions of part 21, if the collector is satisfied that

the transportation of such merchandise in this manner

will not endanger the revenue.

(ce) A common carrier desiring to receive merchan-

dise for transportation in bond shall file with the col-

lector of customs a bond on customs Form 3587 in a

sum to be recommended by the collector, accompanied

—I0—

» by the fee of $45 prescribed by section 24.12, a certified

extract of its charter showing that it is authorized to

engage in common carriage, and a statement that it

is operating or intends to operate as a common carrier

and that it undertakes to carry for such as choose to

employ it.and does not limit its carriage to specific

individuals or firms. In addition to the foregoing a“

freight forwarder shall submit a certificate issued by

the Interstate Commerce Commission showing that it

is operating as a freight forwarder as defined in sec-

tion 402 of part IV of the Interstate Commerce Act.

The extract and statement need not be submitted in

the case of railroad or steamship companies gener-

ally mee be engaged in common carxiage.

(d) In the case of motor carrier bonds submitted

for oe the following shall be filed in addi-

tion to the requirements mentioned above:

(1) A detailed description of the equipment to be

used, showing whether the trucks are open or closed

and whether they can be secured with customs seals,

the number of trucks operated, and whether such

trucks are owned or leased by the proposed bonded

motor ier, and, if leased, whether the trucks are

operated by employees of the fessee or lessor.

(2) A list of the lines or routes over which the prin-

cipal operates or will operate, setting out the cities or

towns at which the trucks stop or lay over en route

and where and in whose custody the trucks remain

‘during such stops or lay-overs.

a (8) A definite statement as to whether the principal

transports merchandise accérding to schedule over each

of the lines or routes named or performs carriage only

when a shipment is secured for transportation.

TI

(4) A detailed description of the terminal facilities

employed by the principal at the points of origin and

destination shown on the list of lines or routes.

(5) A statement showing that facilities are andl

able for the segregation and safeguarding of the pack-

ages designated by the collector for examination from

a particular shipment until such packages are called

for by the public store cartman and removed to the

public stores for examination.

(e) Canadian and Mexican common carriers by mo-

tor vehicles may be bonded for the transportation of

merchandise between two ports in Canada or Mezico

through the United States. (See section 5.11.)

(f) Common carrier bonds may be discontinued at

any time by the Bureau or the collector of customs at

the headquarters port where the bond is filed. Bonded

carriers desiring to discontinue such bonds shall make

application therefor to such collector. (Sec. 551, 46

Stat. 742, as amended; 49 Stat. 1538, 19 U.S.C. 1551,

1551a.)

49 US.C.A. 1002, SECTION (a),

SUBSECTION (5) |

INCORPORATED BY REFERENCE IN

CUSTOMS DEFINITION OF “COMMON CARRIER”

The term ‘“‘freight forwarder’? means any person

which (otherwise than as a carrier subject to chapter

1, 8, or 12 of this title) holds itself out to the general

public as a common carrier to transport or provide °

transportation of property, or any class or classes of

—

9

property, for compensation, in interstate commerce,

and which, in the ordinary and usual course of its un-

dertaking, (A) assembles and consolidates or provides

for assembling and consolidating shipments of such

property, and performs or provides for the perform-

ance of break-bulk and distributing operations with

respect to such consolidated shipments, and (B) as-

sumes responsibility for the transportation of such

property from point of receipt to point of destination,

and (C) utilizes, for the whole or any part of the trans-

portation of such shipments, the services of a carrier

or carriers subject to chapters 1, 8, or 12 of this title.

Y

DEFINITION OF EXPORTATION

TITLE 26, CODE OF FEDERAL REGULATIONS,

EXPORTATION OF LIQUORS,

SUBPART B, § 252,11

Keportation, A severance of goods from the mass

of things he ta the United Mates with the ine

eh oo of aniting them ta the mass of things helong:

ing to some for if country, The — charander of

any shipment shall he determined hy the intention with

whieh it ‘a Hide, and ib asMiined an exporh Character

otily when destined for vse in a foreign eourtitey, Hor

the purpose of this part, shipmerts to Puerto Rico,

the Virgin Islands, American Samoa, Guam, and the

Panama Canal Zone shall be treated as exportations.

Shipments to Kingman’s Reef, the Midway Islands,

or Wake Island are not exportations within the mean-

ing of this part.

(48 Stat. 998-1003, as amended; 19 U.S.C. 81a-81u)

EVIDENCE OF EXPORTATION

TITLE 26, CODE OF FEDERAL REGULATIONS,

EXPORTATION OF LIQUORS,

SUBPART B, 6 252,40

§ 29240 Vvidence of exportation,

‘The exportation of any shipment may he evidenced

iy

(4) A copy of the export Will of lading (4 868,850) ; ov

(i) A sopy of the railway expreas reowipt (4 959,

B51) 5 oF

(6) A copy of the air express receipt (§ 259.252) ; or

| (d) A copy of the through bill of lading where ex-

portation is to a contiguous foreign country (§ 252.

250) ; or

(e) A certificate by the export carrier, as provided

for in § 252.253.

(72 Stat, 1334, 1335, 1336, 1362, 1380; 26 U.8,0, 5058,

WD, HL, 5214, WH62)/

EXCERPT FROM BRIEF SUBMITTED BY

PETITIONERS IN COURT OF CIVIL APPEALS

FOR THE THIRD SUPREME JUDICIAL DISTRICT

OF TEXAS AT AUSTIN,

RAISING FEDERAL QUESTIONS

(4) The federal gove has given to the

broader regulatory powers aver ale

lie heverages than over any other em of

He, |

Presumably because of his mistaken beliefa that

Appellees are exporters’ and that they are operat:

ing under procedures provided by federal law and

customs regulations (both shown above to be errone-

ous), the trial court refused to consider the applicabil-

ity of the Twenty-First Amendment to the statute in

. question. Even, however, if Appellees’ procedure were

in accordance with Customs regulations and even if

Appellees could properly be considered to be exporters «

(neither proposition is admitted; both are specifically

denied), the single fact that Appellees are dealing in

aleoholie beverages might alone and in itself be suf:

fieient to give the Mate of Texas the right ta regulate

and control their Wusinewmes, Beotion 2 of the Twenty:

Hire Amendinent read:

“The transportation or importation inte any

Mate, Territory, or ponmemmion of the United Mates

for delivery or ie Therein of intoxicating liquors,

im wemyen of the laws thereof, is hereby pro-

State laws dealing with aleoholic beverages are,

therefore, in effect incorporated by reference into the

Constitution of the United States. States may regulate

—i6—

and control alcoholic beverages where they could not

regulate or control any other item of commerce.

The Webb-Kenyon Act (97 U.8.0.A. 122), was it-

tended to be and is even broader than the Wilson Act.

Originally passed on March 1, 1931 (37 Stat. 699),

the Webb-Kenyon Act was re-enacted without change

on August 27, 1935 (49 Stat. 877). ‘

A leading case construing the two congressional en-

actments is Clark Distilling Company v. Western

Maryland Railway Company, 242 U.S. 311, 37 8.0t,

180, 61 L.Ed, 926 (1916), where the Court anid:

“Reading the Webb-Kenyon Law in the fi

' tne vi the Wile ad te

y (ire Pe rpg r4

“ +i we y w iis

i extend w the

te | mney ti

; fear, te Wine

‘

of the West Virginia law against shipment, re-

ceipt, and possession to be applicable and control-

ling irrespective of whether the state law did or

did not prohibit the individual use of liquor. That

such also was the embodied spirit of the Webb-

Kenyon Act plainly appears, since, if that be not

true, the coming into being of the act is wholly

inexplicable.”

At another point in its opinion the Court further

explained :

... the Webb-Kenyon Act ... did not simply

forbid the introduction of liquor into a state for

a prohibited use, but took the protection of inter-

state commerce away from all receipt and posses-

sion of liquor prohibited by state law.

‘“‘The movement of liquor in interstate commerce

and the receipt and possession and right to sell

prohibited by the state law having been in express

terms divested by the Webb-Kenyon Act of their

interstate commerce character, it follows that if

that act was within the power of Congress to adopt,

there is no possible reason for holding that to en-

force the prohibitions of the state law would con-

fuct with the commerce clause of the Constitu-

tion; ...”’

(5) The Twenty-first Amendment subordinated

rights under the Commerce Clause to the pow-

er of a state to control and regulate liquor

traffic within: its borders.

In State Board of Equalization of California v.

Youngs Market Company, 299 U.S. 59, 57 S. Ct. 77,

81 L. Ed. 38 (1936), the Supreme Court placed upon

the Twenty-first Amendment much the same construc-

tion which had been given to the Webb-Kenyon Act.

The Court said:

=

‘‘The amendment which ‘prohibited’ the ‘trans-

portation or importation’ of intoxicating liquors

into any state ‘in violation of the laws thereof,’

abrogated the right to import free, so far as con-

cerns intoxicating liquors. The words used are apt

to confer upon the state the power to forbid all

importations which do not comply with the con-

ditions which it prescribes. The plaintiffs ask us

to limit this broad command. They request us to

construe the amendment as saying, in effect: The

state may prohibit the importation of intoxicating

liquors provided it prohibits the manufacture and

sale within its borders; but if it permits such man-

ufacture and sale, it must let, imported liquors

compete with the domestic on equal terms. To say

that, would involve nota construction of jhe

amendment, but a re-writing of it.’’

Similarly Mr. Justice Frankfurter, in a concurring

opinion in United States v. Frankfurt Distilleries, 324

. US. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945), pointed

out:

‘“‘The Twenty-First amendment made a funda-

mental change, as-to control of the liquor traffic,

in the constitutional relations between the States

and national authority. Before that Amendment

—disregarding the interlude of the Eighteenth

Amendment—aleohol was for constitutional pur-

poses treated in the abstract as an article of com-

merce just like peanuts and potatoes. As a result,

the power of the States to control the liquor traf-

fie was subordinated to the right of free trade

across state lines as embodied in the Commerce

Clause. The Twenty-first Amendment reversed this

legal situation by subordinating rights under the

Commerce Clause to the power of a State to con-

trol, and to control effectively, the traffic in liquor

within its borders.”’

—9—

At another point in the same opinion it is further

explained that:

‘*As a matter of constitutional law, the result of

¢ the Twenty-first Amendment is that a State may

erect any barrier it pleases to the entry of intoxi-

cating liquors. Its barrier may be low, high, or in-

surmountable. Of course, if a State chooses not to

exercise the power given it by the Twenty-first

Amendment and to continue to treat intoxicating

liquors like other articles, the operation of the

Commerce Clause continues . . . the ,Commerce

Clause is subordinate to the exercise of state pow-

er under the Twenty-first Amendment, .. .”’

To the same effect see Ziffrin v. Reeves, 308 U.S.

123, 60 S.Ct. 163, 84 L.Ed. 128 (1939) ; Carter v. Com-

monwealth of Virginia, 321 U.S. 131, 64 S.Ct. 464, 88

L.Ed. 605 (1944); State of Georgia v. Wenger, 94

F.Supp. 976 (D.C. Ill, 1951), affirmed 187 F.2d 285,

certiorari denied 342 U.S. 822, 72 S.Ct. 41, 96 L.Ed.

621, rehearing denied 342 U.S. 874, 72 S.Ct. 105, 96

L.Ed. 657.

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.

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