House of Tobacco, Inc. v. Calvert

ARCHER, Chief Justice. This is an action filed by House of Tobacco, Inc., against Robert S. Calvert, State Comptroller of Public Accounts, State of Texas, seeking to enjoin the Comptroller from forfeiting Distributor Cigarette Permit No. 179198-7, also, seeking a mandatory injunction for the return of approximately $3,005.70 of cigarettes which were removed from plaintiff’s place of business on November 3, 1964, along with the books of the Corporation. Plaintiff was heretofore issued Distributor Cigarette Permit No. 179198-7 by the Comptroller of Public Accounts, State of Texas. By letter dated October 30, 1964, the Comptroller of Public Accounts notified plaintiff that in compliance with Article 7.21 of Chapter 7, Title 122-A, Taxation General, V.A.T.S., the Comptroller was forfeiting the subject cigarette permit to become effective five days from October 30, 1964. The reason given for the forfeiture was that plaintiff had been conducting a business of distributing and wholesaling cigarettes without the authorized cigarette meter impression thereon and which cigarettes were possessed with the intent to use, sell, circulate or pass such cigarettes in violation of the provision of the subject article. The notice was received on November 2, 1964, by plaintiff. The appeal is founded on the assignment that the court erred in refusing a mandatory injunction requiring the return of cigarettes seized by the Comptroller, and in refusing to issue a temporary injunction prohibiting the Comptroller from forfeiting the cigarette permit, because such actions were without due process, as guaranteed by the Federal Constitution. On November 4, 1964 appellant sought a temporary restraining order against appel-lee which was denied and a hearing on the [76] application for a temporary injunction was set for November 12, 1964, at which time all parties at interest appeared and trial was had and evidence heard from the Comptroller and several of his employees all of whom were cross-examined by appellant, but appellant did not offer any testimony from its officers or employees. There is no contention as to any abuse of discretion by the court, and believing that the evidence supports the action of the court, such is not restated herein. It appears that the only questions are of a constitutional nature with regard to the Statutes. Appellant says he has been deprived of property without due process of law and that no hearing- was held by the Comptroller in which appellant appeared. Article 7.21, Ch. 7, Title 122-A, Taxation General, V.A.T.S. reads: “If any distributor, wholesale dealer or retail dealer has violated any provision of this Act, or any rule and regulation promulgated hereunder, the Comp- . troller shall have the power and authority to forfeit or suspend the permit or. permits of said distributor, wholesale dealer or retail dealer by giving written notice stating the reason justifying such forfeiture or suspension and the same shall, be forfeited or suspended five (5) days from the date of said notice. Any notice required to be given by the Comptroller may be mailed to the distributor, wholesale dealer or the retail dealer, as the case may be, 'at any place designated as the place of business on the application for permit required ' herein.” As is noted the Article provided for a five day period of delay before the action forfeiting the permit became final. Court action was instituted by appellant on the last day of the five day period. - While the Statute does not within its wording provide for notice and hearing under the due process clauses of both the State and the United States Constitutions, appellant was entitled to a hearing and appeal as an inherent right. Board of Firemen’s Relief and Retirement Fund Trustees’ of Texarkana, Texas v. Hamilton et al.,the Texas Supreme Court Journal, Vol. 8, No. IS, pages 198 and 199, January 30, 1965. We believe that this right was afforded appellant by the five days notice and that appellant availed itself of a hearing by instituting the court action, and in participating in the court hearings. We were informed on the submission of this case that the books and records of the company had been returned and that the cigarettes would be returned upon the payment of taxes and penalties as provided by the cigarette law. The judgment of the trial court is affirmed.