Texas Liquor Control Board v. Ammex Warehouse Co. ( 1964 )

HUGHES, Justice

(concurring).

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 territory for the purpose of guarding against a diversion of liquor into domestic channels, and the Liquor Control Board has both alleged and proved the diversion of appellees’ merchandise to users within the State of Texas. Delivery is made in Texas.”

If there was in this record any evidence which shows that any liquors, at least any significant quantity of liquors, sold by ap-pellees for export was consumed in Texas or diverted for use in Texas, or that there was any reasonable likelihood that such might occur, then I would sustain all of the regulations adopted by the State which were reasonably calculated to prevent such diversion. Qearly Texas has authority to so protect itself. Ziffrin v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128.

The same brief states that the entire State Regulated Liquor Industry along the Rio Grande Valley is vitally interested in sustaining the statutes here attacked.

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 bottle of liquor certified by the United States export official as having been exported to Mexico was not in fact exported or that it has in some manner been consumed or re-sold in Texas, then it seems to me that the patently foolproof method used by ap-pellees to export 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 Ammex-California case 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 concur in the judgment.