91 S.W.2d 493 | Tex. App. | 1936
The state of Texas and the Railroad Commission as plaintiffs, appellees here, through the Attorney General, brought this suit in the district court of Gregg county against *494 the appellant, defendant below, to recover of and from him penalties for the violation of a certain rule and regulation of the Railroad Commission regulating the production, handling, and refining of crude petroleum and its products.
Appellees alleged that: "On February 15, 1933, the Railroad Commission of The State of Texas entered its order providing that no oil produced in the East Texas Field should be delivered, accepted, transported, or otherwise handled by any person, firm, or corporation without having a tender therefor, as provided in said order of February 15th, 1933, the terms of which are well known to the defendant, and which is specially pleaded herein and made a part hereof for all purposes." And that on certain days during the month of November, 1933, the defendant "* * * purchased or transported or handled crude petroleum, all or a part of which was produced from property in the East Texas Field in excess of the amount allowed by the orders, rules and regulations of the Railroad Commission hereinabove set out, and without in anywise complying with said order of February 15, 1933; that the amount and dates on which such oil was purchased or transported or handled are set out in the following schedules. * * *" A detailed statement of the amount of oil purchased daily by the appellant and the price paid therefor was attached to appellees' petition. The appellant answered by general demurrer and special exceptions, which were overruled by the trial court, and by general denial. A trial was had to a jury on special issues which were answered favorably to appellees and upon which a judgment was rendered for the state of Texas for the sum of $5,100 as penalties for the violation of a rule of the Railroad Commission, being the sum of $425 per day for twelve days. From this judgment appellant prosecutes this appeal.
Appellant submits three propositions as follows:
"1. The Texas Conservation Statute (article 6014, R.S. and amendments thereto) is a penal statute, and its regulatory provisions, and the provisions which create the offenses prohibited, are not sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable for its violation.
"2. The penalties proposed for violating the statute and the orders of the Commission, are, on their face, so excessive, so drastic and extreme that they appear plainly designed to affright those subject to the Act and said orders into abject incontinent submission, thereby depriving the citizen of his fundamental right to know his rights, and knowing, dare maintain them.
"3. Defendant (appellant) was compelled after due and proper objection to testify as a witness against himself to all of the things charged by plaintiff" (appellees).
The first and second propositions set out above are in the exact verbiage as those discussed in the case of Flannery v. State (Tex.Civ.App.)
The above case is typical of all those cited by appellant under his first proposition. It will be noted that no order of the Oklahoma commission was involved in that case, but the suit was for penalties for violating the terms of the statute defining waste. In the case at bar the Railroad Commission after due investigation on February 15, 1933, entered the order requiring of all persons handling, accepting, or transporting crude petroleum in the East Texas field to secure from the Railroad Commission a tender therefor, and the suit here is for penalties for violating the rule of the commission and not for violating the terms of the statute. The statute fixes the penalty for the violation of the rules promulgated, under authority of the statute, by the Railroad Commission. The following cases we think are decisive of this question: Flannery v. State, supra; Danciger Oil Refining Co. v. Railroad Commission (Tex.Civ.App.)
Appellant's second proposition, we think, is without merit. In passing upon a proposition of the exact verbiage as the one here under discussion, Justice Higgins in Flannery v. State, supra, says: "Plaintiff in error's second proposition is without merit under the ruling in Culver v. Smith (Tex.Civ.App.)
The third and last proposition of appellant is to the effect that he was called as a witness by the appellee and compelled to give evidence against himself. At the beginning of the trial of this cause in the court below, the appellees called appellant as a witness and proceeded to examine him relative to the handling of crude petroleum at his refinery on the days it was charged in appellees' petition he had violated the rule of the Railroad Commission in regard to procuring a tender covering said crude petroleum. Appellant's attorney objected to this procedure, stating that: "If the defendant has committed any violation of the law of the State, which is alleged here that he has in the petition and for which penalties are being sued, I object to the use of the defendant himself as a witness against himself, and also the use of his books as a witness against himself." At the conclusion of appellant's testimony his attorney made a motion to strike the evidence. The trial court overruled both the objection and the motion.
This character of action has been held to be civil and not criminal. Waters-Pierce Oil Co. v. State,
Therefore, in our opinion, the judgment of the trial court should be affirmed, and it is so ordered.