126 S.W.2d 738 | Tex. App. | 1939
Appellants made application for renewal of their package store permit to sell liquor at retail in unbroken packages at their place of business in the City of Port Arthur. The permit was refused because the store was located within territory of the city of Port Arthur which had been declared a dry area by amendment to the city charter. By this action appellants sought a mandamus to compel the administrator of the Texas Liquor Control Board to issue the permit. Plaintiffs fully plead their case and alleged facts which entitled them to the permit provided the charter provision in question is invalid, as they contend it is. But, on the other hand, if the charter provision is valid then they are not entitled to the relief sought. The trial court in effect held the charter provision valid by sustaining a general demurrer to plaintiffs' petition, and this appeal is from that judgment.
The City of Port Arthur, which is a "Home Rule" city, adopted the charter amendment on November 4, 1936. It reads as follows: "No spiritous, vinous and malt liquors or beer shall be sold or any license or permit be issued for the sale of same, either by the State, County, or City, except within the following defined areas and/or boundaries within the City of Port Arthur, Texas, to-wit:" (Then follow certain boundaries.) This charter amendment was before this court in Pitre v. Baker,
"(a) The same was in conflict with a general law of the State of Texas, section *740 24, Article 1, Texas Liquor Control Act (Vernon's Ann.P.C. art. 666-24).
"(b) The same was in conflict with Article 16, Section 20, of the Constitution of Texas (Vernon's Ann.St.), in that it was a local option provision;
"(c) The same was discriminatory, arbitrary, and unreasonable in its scope and showed upon its face that it was so capricious, arbitrary, unreasonable, unwarranted, and discriminatory as to constitute the taking of property without due process of law, contrary to both the State and Federal Constitutions (Const.Tex. art. 1, § 19; Const.U.S. Amend. 14).
"(d) The same was contrary to Section 24, Article 1, Texas Liquor Control Act in attempting to prohibit sales in business territory."
We think that view is clearly untenable. It cannot be questioned that cities operating under the "Home Rule Amendment" have the general power to confine the sale of intoxicating liquors to defined districts within the city. Le Gois v. State, 80 Tex. Crim. 356, 190 S.W. 724; Ex parte King, 52 Tex. Crim. 383, 107 S.W. 549; Pitre v. Baker, Tex. Civ. App.
There is a further contention that the charter amendment was void because discriminatory, arbitrary and unreasonable in its scope in that much of the business district of the City of Port Arthur was excluded from the district wherein sale of liquor was allowed, which result it was alleged was brought about by "Gerrymandering tactics" on the part of the framers of the amendment. We think that contention is also without merit. Charter provisions which establish such districts and confine the sale of liquors within such territory are not in the nature of prohibition laws but are regulatory in nature. Williams v. State, 52 Tex. Crim. 371,
It is our conclusion that the trial court was correct in sustaining the general demurrer to plaintiffs' petition.
Judgment affirmed.