This appeal is from an order granting a temporary injunction. The Texas Liquor Control Board, appellant, makes no contention that the Trial Court, from an equitable point of view, abused its discretion in awarding injunctive relief. Its position throughout is legal, not that equitable principles have been transgressed.
The Diners' Club, Inc., appellee, brought this suit alleging that it was in the credit card business. Such cards are issued to persons found to be worthy of credit and authorize such persons to purchase on credit from retail firms with which Diners' has an operating contract. Appellee operates in Texas and has invested substantial sums of money in its business.
The allegations of Diners' regarding the particular contracts involved in this suit are:
The legality of these contracts is fully averred.
It was further alleged that on June 30, 1960, the Board issued and caused to be brought to the knowledge of retail permit holders with whom Diners' had contracts, the following order and directive:
The Trial Court made unchallenged findings supporting the substance of these allegations, and made other findings relative to the necessity for the issuance of a temporary injunction enjoining enforcement of the order and directive of June 30, 1960.
The Board's first point is that this suit is a suit against the State, and that legislative consent has not been procured.
The solution of this problem depends upon the applicability, vel non, of the rule stated in Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712, 17 A.L.R. 837, and quoted in Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, as follows:
It is our opinion that the nature of the case pleaded, and at least tentatively established, is within the rule. See Griffin v. Hawn, 341 S.W.2d 151, Texas Supreme Court.
Appellee has briefed, at length, the legal issues presented by Supervisor Strong in his directive to District Supervisors, which, so far as the present record indicates, will be the controlling issues tried when this case is reached on its merits.
Since the Board has declined to brief these questions, we do not consider it our duty to discuss and decide them on this appeal.
We do say, and we do hold, in agreement with the Trial Court, that Diners' has made a proper showing of "a probable right and probable injury," sufficient to require the maintenance of the status quo pending a final determination of the issues presented.
The Board's second point is that Diners' has no justiciable interest in the directive issued by the Board or in any permit issued by the Board.
The Board sums up its argument here by saying:
We overrule this point. The directive issued by the Board, or under its authority, expressly names appellee and condemns the contracts it has made with retail package stores and threatens administrative action against such stores if they persist in participating in the contractual arrangement.
Diners' interest is in its contracts with retail liquor dealers. It does not claim to have any interest in the retail liquor business. The Board affirms this position.
We believe the ineptness of the Board's contention may be simply illustrated. If A contracts with carpenter B to construct a house for him, A does not thereby acquire an interest in the business of carpentering, but his interest in the construction contract is vested.
Diners' seeks to protect its interest in the contracts which the Board's action, and threatened action, destroys. We believe Diners' has this right. See City of Austin v. Austin City Cemetery Association, 87 Tex. 330, 28 S.W. 528, Cabell's, Inc. v. City of Nacogdoches, Tex.Civ.App., Beaumont, 288 S.W.2d 154, writ ref., N.R.E., Smith v. Decker, 158 Tex. 416, 312 S.W.2d 632, City of Houston v. Jas K. Dobbs Company of Dallas, 5 Cir., 232 F.2d 428.
Bearing in mind that this suit is not brought to recover on, cancel or enforce any of the contracts Diners' has with retail liquor dealers, we find it stated in Injunctions, Sec. 164, 24-A Tex.Jur., that "The plaintiff in an action must be one who is injured in a property or civil right by the injunction defendant's wrongful act" and, in Sec. 168, Id., that "All persons against whom the injunction must run in order to make it effective and whose interests will be injuriously affected should be made parties defendant."
There is no requirement that all persons who are injured by the wrongful act complained of should be made parties plaintiff. It is enough that Diners', one such party, is plaintiff. There is no absence of indispensable parties, and this point is overruled.
The Board's final point is that the effect of the order appealed from is to enjoin it from performance of its duties in the administration of the Liquor Control Act, and hence is erroneous.
This point begs the questions to be decided, and as to which the Board expresses no opinion. If the order of June 30, 1960, enforcement of which has been enjoined, is, as Diners' contend, beyond the authority of the Board to issue, then the order is void. Enjoining the issuance and enforcement of void orders by the Board does not interfere with its statutory duties in administering the Liquor Control Act.
We have examined the Carp opinion, cited in footnote 1, and find it entirely consistent with our opinion herein. Administrative remedies such as were available in Carp were not open to Diners'.
The order appealed from is affirmed.