On October 30, 1964, the State Comptroller sent the House of Tobacco, appellant, a letter from which I quote:
"This is to notify you that in compliance with Article 7.21 of Chapter 7, Title 122-A, Taxation General, V.A.T.S., distributor cigarette permit #179198-7 heretofore issued to you is hereby forfeited, to become effective five (5) days from October 30, 1964.
"The reason for forfeiting this permit is that you have 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 Chapter 7, Title 122-A, Taxation General, V.A.T.S.'
In sending such notice, the Comptroller was acting in compliance with the Statute *Page 77 referred to and which is copied in the majority opinion.
It is my opinion that the procedure authorized by this Statute and followed by the Comptroller does not comply with the due process provisions of the Federal Constitution.
It is fundamental that notice and hearing are essential to administrative due process. This notice and hearing mustprecede the final administrative order. This is the holding in Ewing v. Mytinger Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088, from which I quote:
"The administrative finding of probable cause required by Sec. 304(a) is merely the statutory prerequisite to the bringing of the lawsuit. When the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court. This hearing, we conclude, satisfies the requirements of due process.
"At times a preliminary decision by an agency is a step in an administrative proceeding. We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective. See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694; Inland Empire [Dist.] Council v. Millis, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877; Opp Cotton Mills v. Administrator of Wage Hour Division of Dept. of Labor, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624.
"But this case does not go as far. Here an administrative agency is merely determining whether a judicial proceeding should be instituted. Moreover, its finding of probable cause, while a necessary prerequisite to multiple seizures, has no effect in and of itself.'
See also concurring opinion of Associate Justice Griffin in L G Oil Company, Texas Sup. Court, 368 S.W.2d 187 and authorities therein cited. Also City of Houston v. Glen Oaks Utilities, Inc., Tex.Civ.App., 360 S.W.2d 549, Houston C.C.A., writ. ref. n. r. e.
In this latter case it is said, 'It follows that if a suit for injunction is a substitute for notice and opportunity to be heard by the rate-making body, then the requirement of procedural due process is meaningless.'
The Comptroller testified that the Tobacco House was 'out of business on November 4th,' this being the fifth day after mailing the notice of forfeiture.
It is plain that the Statute does not provide for a hearing before a forfeiture is declared and does not, of course, provide for notice of such hearing. This does not, however, condemn the Statute as unconstitutional under the cases now to be cited which hold that these provisions may be incorporated in the Statute by implication unless the Statute expressly provideds otherwise. I do not construe this Statute to so provide. Industrial Accident Board v. O'Dowd, 157 Tex. 432,303 S.W.2d 763, Cunningham v. State, Tex.Civ.App., 353 S.W.2d 514, Dallas C.C.A., writ ref., n. r. e.
In order that this opinion may be complete on its face I quote the following from O'Dowd, supra:
*Page 78"Obviously if the explicit provisions of a statute direct an administrative board to proceed without notice in contravention of the constitutional due process requirements (as in the Francisco case [Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619]) there would be no room for a presumption that the Legislature intended that a notice be given. However, on the other hand, we must assume that the Legislature intended to enact a valid law, and in the absence of express language to the contrary, intended that the administrative board should proceed in accordance with constitutional requirements. The Board
here construed the statute as requiring notice and notice was actually given. Under these circumstances the following language from American Power Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 143, 91 L.Ed. 103, seems applicable:"That the statute does not expressly insist upon what in fact has been given the security holders is without constitutional relevance under these circumstances. Wherever possible, statutes must be interpreted in accordance with constitutional definite contrary indications, it is definitecontrary indications, it is fair to assume that Congress desired that Sec. 11(b)(2) [15 U.S.C.A. Sec. 79k (b)(2)] be lawfully executed by giving appropriate notice and opportunity for hearing to all those constitutionally entitled thereto. And when that assumption is added to the provisions of Sec. 19 [15 U.S.C.A. Sec. 79s], it becomes quite evident that the Commission is bound under the statute to give notice and opportunity for hearing to consumers, investors and other persons whenever constitutionally necessary. See The Japanese Immigrant Case [Yamataya v. Fisher] 189 U.S. 86, 100, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721 [725, 726].'
"Another statement of the prevailing rule upon the subject is found in Caughman v. Columbia, Newberry Laurens Ry. Co., 82 S.C. 418, 64 S.E. 240, 242, viz.:
"A statute is invalid which requires something to be done which is forbidden by the Constitution, but it cannot be essential to the validity of a statute that it should enjoin obedience to the Constitution. The great weight of authority is to the effect that while notice of a special burden or duty which a board such as this proposes to impose must be extended, and an opportunity to be heard on the rightfulness of the exactions must be given, it is not necessary that the statute under which the board acts should expressly provide notice."
"Likewise in McManus v. Industrial Commission, 53 Ariz. 22, 85 P.2d 54, 56, the Supreme Court of Arizona said:
"It is, * * * true that notice and opportunity to defend must be a matter of right and not a matter of grace, but we think that such right may be implied from the terms of a statute without being expressly and explicitly set forth in detail therein. * * * We think that when the word 'hearing' is used in a statute which attempts to confer jurisdiction to determine whether the property of one person shall be taken and given to another, it necessarily implies, as a matter of law, that the hearing shall be one of which reasonable notice is given to the parties and at which they have an opportunity to appear and present any defense which they may have against such taking, and that any proceeding which does not comply with these two conditions is not a 'hearing' within the meaning of the law, and any order made in pursuance of such proceeding is void for lack of jurisdiction. This general principle of implied notice has been upheld in a number of cases where the statute was not as explicit in regard to the necessity of a hearing of some kind as is the law under consideration at the present time."
Since appellant has not been afforded a hearing upon proper notice prior to the forfeiture of his Permit to engage in the lawful business of distributing and wholesaling cigarettes, I would render judgment enjoining the Comptroller from enforcing the forfeiture of such Permit until the trial court has determined that a hearing after due notice has been afforded the House of *Page 79 Tobacco, upon which the injunction should be dissolved.
For the reasons stated, I respectfully dissent from the majority opinion.