*1 Petitioners, al., R. L. FOREE et PETROLEUM CORPO-
CROWN CENTRAL al., Respondents. et RATION B-460.
No.
Supreme Texas. Court of
June
313 unjust disсrimination in for oil, grant- the trial court purchase crude summary judg- for respondents’ ed motion plaintiffs judgment ment and rendered appeals civil nothing. take The court of affirmed. 499. We reverse 417 S.W.2d judgments and remand of both courts the cause to the trial court. phase of represents one
The instant case growing out lengthy litigation rather Commis- complaint filed with Duffy charging by B. A. sion of Texas carrier- respondents, are common who as purchasers de- common of crude oil Tex.Civ. fined Art. Vernon’s discriminating against com- Stats., were The crude oil. plainant purchase or- Commission, hearing, entered its directing respon- der on transporta- dents to extend their system connection with tion and to make Respondents ap- Duffy’s tank batteries. 126th District pealed filing suit County to set aside or- Court Travis Attorney answered The der. General in his de- joined and was cer- fense of the pe- intervenors, including of the some tain before us. titioners the case respondents filed A time after short suit, Attorney filed General respondents separate against suit County of Travis 53rd District Court statutory pen- sought he to recover day for each alties of from to $1000 $100 for man- practices and discriminatory respondents to datory injunction directing order. Commission’s comply with the Billy Lee, Houston, E. Clayton May, H. intervened Some our Dallas, N. Ludlum and N. James James of one-half an award sought suit Ludlum, Jr., Davenport, Austin, for John Attorney by the any penalties recovered petitioner. actual recovery of and a General Vinson, Elkins, Weems & Searls, W. H. privilege plea Respondents filed a Drushel, Houston, McDaniel, Jr., Cable & recovery sought phase of the suit which McDaniel, Baltimore, Md., ap- S. John granted the court the trial damages and pellee. phase plea ordered County. Harris transferred to CALVERT, Chief Justice. Duffy Crown appeals of civil affirmed. Cоrp., 366 S.W.2d by petitioners, Petroleum plaintiffs, In this suit as Central 1963, writ). respondents, defendants, against (Tex.Civ.App. —Austin summary Respondents a motion for er County. filed Sand Field in Unit Haskell respect phase They with alleged further Central suit in District Court of Travis 53rd common defined County mandatory penalties in which Art. 6049a and in its of crude oil sought. injunctive relief were The trial had plaintiffs discriminated *3 granted court and the motion rendered favor of production its own from October 15, judgment plaintiff that and 1, the intervenors 1959 They to November 1964. nothing, provided judg- take sought $85,998 by but the damages of measured right ment should not to transportation be bar to charges per cents bar- of re-file if the Commission’s order then un- rel for trucking their Cen- oil to Crown finally der attack in the 126th Court should Teague Receiving tral’s Station. Crown adjudged order. The valid of Company court Central Pipe Line alleged was appeals of civil affirmed. State Texas v. be produced a common carrier of oil Corp., Central Petroleum 369 S.W. County Haskell wholly and a sub- owned (Tex.Civ.App. 1963). 2d 458 We sidiary Pipe of Crown Central and Line —Austin error, refused writ no reversible error. turn, of Transportation which, Company wholly subsidiary was a owned of Crown petitioners’ damages was After suit for Corporation. Central Petroleum County, the Railroad transferred to Harris August an order on Commission entered Damages sought by plaintiffs were the 21, of withdrawing 6049a, former order 11c, authority under of Sec. Art. 21, The withdrawal order 1962. which reads: finding that upon entered Service was any person, persons, “When associa- proposal, Pipe Line had made a Company corporation is tion or discriminated request respondents, at the to extend its of purchaser de- against by a common tank the facilities and connect to batteries production fined in favor the herein of parties original in whose favor the of purchaser, of a cause said common order order was entered. The withdrawal damages, action has oc- for when such purpose recited that order curred, lie said common shall February 21, accomplished been 1962 had person, persons, asso- and said and that the matter of extension for corporation bring ciation “now connection as theretofore ordered competent any jurisdic- same in court of presents only question.” a moot Service county damage tion in in which the Pipe Company Line made the connection occurred.” Thereafter, respоn- on November 126th District Court dents’ suit take-nothing judg trial court’s The County challenging Travis by ment affirmed of civil court was dismissed. original Commission’s order appeals ground juris that primary on the Following of the suit in dismissal diction of discrimi to determine issue County, res- Travis 126th District Court of Railroad nation was conferred mo- pondents, 6049a, filed their on by that in the Commission Art. June in this summary case tion for absence of a final order of the Commission County. In Harris court determining district that issue suit for suit, plain- in the order petition their amended final could not be maintained. If a .here, they tiffs, alleged determining the issue prerequisite of interests various owners discrimination is County Regu- dis Haskell producing leases in to maintain all suits for for 11c, 6049a, Field, Petro- Crown Central Art. lar crimination under Sec. exists, pur- Corporation producer judgments if no leum such order County Haskell We of crude courts below should affirmed. chaser oil adjoining Sojourn- prerequisite hold that an order is not Field Regular extend its requiring Crown Central to statutory suits tion maintain all right to Duffy’s tank bat- pipeline and connect with summary take-nothing judg- The teries. whether question of the trial court ment was rendered finding discrimination appeals court of civil was affirmed damages as au a suit for prerequisite to of action grounds (1) nо cause 11c, Art. thorized independ- penalties and mandamus existed presented to squarely been heretofore order, ently of the Commission’s appellate courts directly decided ju- primary had exclusive support its decision this state. discrim- risdiction determine the issue of appeals in civil question, the ination; cause action for (2) Texas Deep Co. of case cited South Oil penalties and refusal mandamus *4 (Tex. 897 Corp., 328 S.W.2d Texas Gas exist- comply with the Commission’sorder ref., n.r.e.) 1959, Civ.App. writ —Beaumont ed, right to because Crown Central had a Petroleum Crown Central and State v. appeаl being from the order without sub- (Tex.Civ.App.— Corp., 369 458 S.W.2d penalties jected heavy to the manda- Respondents 1963, n.r.e.). writ ref. Austin mus. 369 S.W.2d at 462-463. Justice cite the same cases. Hughes dissented. 369 S.W.2d South, Corporation, Deep Texas Gas From re-examination the rec- a careful of gas, sought a de- a common of ord Central, v. Crown are State we un- claratory judgment obligations as to its judgment now that convinced the rendered Deep gas a from der contract to in that case was erroneous. In no event cross-action, By Deep South South. take-nothing judgment should a have been for contract sought cancellation of the present con- entered. The reasons for our fraud of discrimination because concerning clusion in State the taking gas, it in the and because v. Crown Central will be manifest sought damages the right our to discussion of the civ- the date The court of of cancellation. damages. maintain suit for appeals, discussing right Deep il the of dis- damages to recover South express provision in Art. We find no crimination, held, broadly, that Art. 6049a 6049a related a statutes which denies to required that the issue related statutes complainant statutory prose- right his to to the of discrimination be first submitted cute а the of a absence 897, at 328 Railroad Commission. S.W.2d subsisting final and order 907-908. Considered in the factual context Indeed, finding plain the discrimination. case, holding, although apparent- 11c, wording of Art. seems ly dictum, application facts has no clearly re- a suit to authorize such without Immediately making this case. before therefore, If, gard to Commission action. quoted holding, pointed the court out discrim- discrimination, any, against that if prerequisite right sue ination is to Deep type of discrimi- South was not damages, and recover it must be made lie, Art. 11c and nation for Secs. judicially so created doctrine of sue 6049а, expressly right conferred “primary jurisdiction”. According to one writer, “Questions primary jurisdiction Corp., statutory arrangements arise when the Petroleum v. Crown Central State judicial are that administrative noted, phase of was another heretofore the initial parties jurisdiction are concurrent for litigation between the Davis, questions”. Ad- Attor- decision some appeal and involved Doctrines, 28 Tex.L.R. ministrative Law statuto- for and recover ney sue General intervenors, 400. That is the situation (1950), 376 at with ry penalties, to shared injunc- here. mandatory right to obtain his jurisdic Gregg Delhi-Tay- The statutes confer no had occasion in We Corp., tion the Railroad Commission lor Oil 162 Tex. S.W.2d statutory problem lia penalties; (1961), award primary review bility for exactions deter jurisdiction these is to be agencies of administrative exclusively by mined depth. case, courts. On considerable In that we held hand, are although pow- the courts not vested with that clothed with extensive original jurisdiction regulations pre- to order that common make ers to rules and pipelines carrier protect extended connected vent gas waste of oil and cor- particular wells; is rights relative there- interests owners 8b in, confided to the Commissiоn Secs. the Railroad have lid, 6049a, upon findings that the primary trespass Art. prevent to- Jurisdiction required in by extension “reasonable and operator upon is property one an- in expense interest and holding other. The rationale of our impair ability of such volved will not original jurisdiction courts had as- * * * perform trespass common carrier certain being whether a com- forums, pre- duty to In both public”. enjoin ques- mitted and to prereq- liminary is finding of discrimination presented “primarily judicial tions uisite to the of relief. granting nature”. We said: “Where issue Jurisdic- inherently tion of the the Commission judicial (as courts аnd in nature we one *5 trespass question is), thus concurrent on the issue of discrimina- the think the of rule, situations, general jurisdiction the tion. are not un- courts ousted statute, Law by Administrative has Legislature, as stated Davis in a valid less the 1950), Text, (Hornbook granted jurisdiction Series explicitly 19.07 to exclusive By enunciating at is body”. as follows: the administrative primary ju- particular exception to the reasonably clear theory “The seems hold, rule, not risdiction did mean to we of principle applying
that the the test hold, that there could be no and did not primary jurisdiction not some is whether exceptions. other exclu- parts are the within case the but wheth- jurisdiction of courts sive damages in The cause action for parts the the case er some are within neces the case illustrates another instant agency. jurisdiction the exclusive rule, wit: sary exception general to to tois purpose of the doctrine Because the agency power is when administrative by- agency will not be assure that the sought has no grant less to the relief especially committed passed is on what findings authority incidental to make is it, the courts resort to because granting are essential to the which acted, the agency open has still ex purposely stated We have relief. agency even if the applies doctrine have narrowly we do not ception sought. relief grant no the administra us a case in which before applied Thus, was the doctrine relief grant the powerless is agency tive Railway Texas, Thompson Mexican authority in to make sought, but does have L.Ed. 66 S.Ct. U.S. findings [328 are essential cidental though even (1946)], The effect inciden of the relief. granting ICC though the damages and even situation, should latter findings, tal damages. When not could award or de granting judicial on action have sought, the relief grant agency cаnnot give can the courts relief which nying proceed- stay judicial the court We will save be decided. need not determi- administrative ing pending the day. and another problem for another case nation; was done what this is related conservation Art. 6049a and Tex-Mex case.” upon powers confer broad statutes hearings, to hold rule. general exceptions to the are There regu- expressly suit. findings, promulgate When order was with- rules and make drawn, longer presumptively prevent enter could be lations and orders to no were, discriminatory respondents valid. If it practices terminatе com- could still subject purchasers oil to a court order to and con- mon carriers and common extend however, wells, pipelines petitioners’ nect re- gas. statutes, In none of wholly sult which would be authority do find for the Commission anomalous. we findings dis- When the issue of of the order be- hearings to hold and make except moot, findings came all incidental crimination as incidental i.e., power action, pro- also moot. But to take official mootness of the Commis- mulgate finding sion’s order and its incidental regulations rules and or to enter words, destroy petitioners’ discrimination not au- issue orders. In other damages. cause of thority upon action for Their suit conferred the Commission stood on the court’s docket for trial findings to make in a issue of discrimination and the amount agent vacuum or as a mere a trial court. follows, damages. therefore, appeals It The court of civil that the Commission erred affirming take-nothing judg- authority, does not have have cannot ground ment primary jurisdiction, exclusive a final and sub- to make findings sisting particular Commission order discrimi- discrimination in a prerequisite nation petitioners’ right case alleged when the discrimination no longer sue for and exists and recover official action thereby Commission is mooted. That Respondents assigned reasons the situation here. why summary judgment their motion for petitioners’ claims for should Legislature did not condition denied, part, only in whole or in two penalties disposed a which of what we have are *6 final, They petitioners (1) written. are that are subsisting valid and damages not during appeal entitled to finding of Conceivably, discrimination. February 21, 1962, from be- the order of of gross course continuing ju- respondents right cause have a to safe period over a negotiation of months of running dicial review without the risk of could be abruptly upon halted threat of having pay damages, (2) substantial and to complaint Commission; or, it could petitioners damages are not aft- entitled during terminated a Commission hear 21, 1964, August petitioners er en- ing. event, In authority either of the agreement tered into an on that date Commission to enter an order would be pipeline company. with connection another mooted, and the Commission would have authority findings past to make dis rea We can think no sound crimination. The situation in the case be respondents’ liability holding son for that materially fore us does not differ from during continue for actual not hypothesized. Here, those the Commission pendency appeal of their from the Commis made a that connec extension and sion’s order. Interest on contractual obli respondents’ pipeline Duffy’s tion of gations are certain and on which necessary prevent tank batteries was during and continues to run ascertainable discrimination. It also made pendency right to re of suits in statutory findings essential its wrong primary obligation or cover on the extend connect. Before the issue of and seriously questioned. Damages is tried, the order’s it could be continuing trespass up judg to the date rendered moot the connection made recoverable, trespass although the ment are Pipe Company. Service Line The Com stoutly We denied and contested. expressly mission so stated when it with appeal are not concerned on this with original drew its order and trial court recover Attorney General impliedly it held when dismissed so respondents’ penalties during pendency petroleum products pur- could finally question That decided producers pleased suit. chase from such as it Corp., Central Petroleum v. Crown could refuse State from such and, 458, Tex.Civ.App., producers pleased, whether 369 S.W.2d and there was no decided, open correctly incorrectly penalty or for such conduct. Such discrim- unlawful, ination for review. was not but on the con- trary practice was lawful. This encour- Respondents entitled to a are not aged monopoly penalized, in fact partial take-nothing summary judgment as might bankrupt-the producer unable to sell by petitioners Au damages sought production. his 1, Their 21, gust 1964 to November Legislature passed 1899 the laws proof summary judgment providing corporations could be with another agreement into entered an formed purpose for the of transporting, 21, 1964, August pipeline company on buying selling gas, laying pipe- oil affida take their oil is controverted lines, terminals, constructing etc. These petitioners, vit made on behalf corporations given power eminent is thus created. fact issue acquiring domain in necessary rights-of- ap- the court civil judgments way, storage facilities, pro- etc. This law reversed and peals trial court are any vided it should be unlawful for for a to the trial court remanded cause corporation discriminate use trial on merits. conventional its Penalty facilities. for viola- misdemeanor, tion was a and officers and DIS- AND IN PART CONCURRING agents corporation could be fined PART IN SENTING imprisoned county per- jail mitting engaging in discrimination. GRIFFIN, Justice. The Railroad not men- Commission was body. regulatory tioned majori- I with agree and remand- this case reversing ty opinion By Act Legislature (1917), 35th trial, disagree with I but ing it for new Session, Regular p. 48, Legisla- Ch. I opinion. announced the reasons ture pipelines carriers, defined as common Railroad Com- agree that when do not utilities, gave declared them or- entered August mission power regulate *7 withdrawing its order of der prohibited them. The Act further discrim- and existed 1961, finding discrimination against individuals, ination in favor of or its to сonnect Central ordering Crown associations, corporations the conduct or in tanks, it there- Duffy Lease the pipelines to gas the oil and Railroad of business. The finding discrimi- away of by with its power estab- given was the nation. gov- regulations lish and enforce rules and finding in agree erning pipeline carriers the do I the common Neither petitioners- business, making it against and existed conduct of discrimination Central duty by the the to exercise of plaintiffs defendant recovery any person of power upon petition the such an incidental subject. can having There in the by plaintiffs. substantial interest the 11с, prevented Sec. Act discrimination under Sec. 7 this recovery dis- pro- been by pipeline the and there is or common carriers unless Art. 6049a That fixing the rates “shall plaintiffs. general the vided that crimination limit the of the Commission kind of discrim- not be the must regulations and different prescribe At common rates by statute. prohibited ination places rates from other the statutes from or to some passage of the prior law and determine; discrimination, regulations” it prohibiting defining and unjust field, and without the same any guilty carrier be of discrim- “nor shall between discrimination as unreasonable or any obeying ination when ordеr State; justice question of in this fields found as Art. Commission.” Sec. 7 is by the determined to be or reasonableness present Revised Civil Statutes. of our taking consider- into Railroad Commission C.S., Acts, Legislature (1930), 5th 41st age wells production ation caption that p. set in the Ch. forth proper all other respective fields and fac- powers and enlarging act “[was] this determina- make Can tors." * * * of the Railroad duties committed Legislature has the tion or forbidding discrimination in The answer to the Commission? matter except petroleum, as authorized of crude bet- much The Commission is is obvious. by of Texas Railroad Commission phasе experienced in this equipped and ter ” * ** partialy etc. Act re-en- This uniformity law, much more acted, made, provisions additions were Commission, and result if decision will 32nd, Legislature, rewritten the next This courts, this decision. makes not stands, and Art. as it now Com- Railroad “The 8 concludes: Section Generally legislation. of this later result authority, shall Texas have mission the first speaking, the first six sections of pur- however, common any such to relieve last set in haec verba in the Act were out hearing as after due notice chaser, present Art. 6049a Act. Sec. 7 of pur- duty provided, hereinafter provides upon cоmplaint that either or on or quality inferior petroleum chasing notice, proper its initiative and after own de- can a court ask, I again Here grade.” may “authorize the Railroad Commission pur- exception and relieve termine * * * person require any or Dis- discrimination? chaser of unlawful corporation pipe owning operating or or products will purchase of crimination * * * lines carrier which is a common permits exist, if the Commission but still * * * as defined extend law or unlawful, common and the such, it is not lines, enlarge pipe storage such facili- or any penalized or cannot be tiеs, provided enlarge- such or extension such discrimination. court for ment shall be to be reasonable and found a com- provides substance 8a Sec. required in the interest gas purchaser of carrier or common mon expense impair will the ability involved take, gas under purchase, “shall public utility such common carrier or pre- may be regulations as such rules perform public.” (Empha- duty to and “under by the Commission” scribed added.) determine whether sis Who is to against discrimination inhibitions same or not an extension of the apply provisions” same subject to necessary? only It can common carrier is purchasers of oil. common Commission, be the and it exten- deciding questions that the provides: 8b required reasonable sions are the Railroad duty “It shall *8 public impair and the abil- interest will not see that Texas to Commission utility ity public common carrier or fully complied Act are this provisions of public. not de- to serve are Courts after power, with, and it shall have policy in questions public termine these rules, regu- make hearing, to and notice jurisdiction giving the face of a statute orders, distance defining the lations questions an administrative over these shall gathering lines or that extensions agency Commis- our case the Railroad —in wells; and such gas or all oil be made to sion. as rules, or orders regulations provisions carry out the necessary to 6049a, e., very i. The next section Art. Act, prevent discrimina- this fa- prohibits “in Sec. discrimination purchases.” an- tion against person producer vor of one or provisions fact, Under the given of Sec. 7 the Com- er is cause of action. provides mission must find such extensions “reason- Art. 6045 any “nor shall carrier required able interest guilty obeying of discrimination when that the expense impair any involved will order of Commission.” ability pub- of such common or carrier majority by The says the determination utility perform duty lic its the public.” the Commission as to the existence of dis- provides
Sec. 9 : “The crimination finding” Railroad Commis- is an “incidental authority sion of make is granting Texas shall have essential to the regulations sought. rules and relief for the enforcement of unlawful provisions of this Act.” discrimination by the very any is the action basis for cause of Sec. 10 confers that is which one discriminated Commission, proper after and hear- notice against the “discriminator.” No discrimi- ing, hear re- any question and determine nation, action cause of for lating prohib- enforcement of thе Act 11c, Only Art. Sec. 6409a. in Art. iting discrimination as defined finding, can make this find discrimi- for to 6049a. the Com- nation statute sets out what is majority must If the mission first find. provides Sec. that the Texas State correct, punish party then can a court (and through Attorney it must act its Gen- obeying an order eral) may for discrimination suit in the bring District Court Commission, expressly Art. any the when County of Travis for violation of prohibits punishment. such provisions any rule, reg- of Art. valid ulation, promulgated by the Rail- keep must in mind that it is We road under 6049a. Sec. Art. legislative virtue of enactment of stat- provides 11 further half of such “[o]ne liability any discrimi- that there is ute penalty may be recovered and for enactment, there statutory nation. Prior to use any person, persons association discrimination, could nor was no unlawful corporation against whom there shall any recovery for discrimination. there be as have been an discrimination unlawful Commission, notice * * case the In our herein defined hearing, entered its order of provision 11c is the under which “that 21, 1962, things, finding, among other al., plaintiffs, Duffy et brought trans- a reasonable extension of private damages. provides It for suit system the B. portation connections by any person, discriminated etc. who “is batteries, prayed Duffy tank A. against by purchaser as a common defined are application complaint filed production herein in its own favor” dis- necessary prevent reasonably [sic] al. Duffy et producer over another ** prohibited by law crimination requisite necessary and follows the of Then study the above sections From ex- requires before findings which Sec. 7 every dis- statute, find that is not we by the can Commission. only an tensions be ordered unlawful, crimination and final order valid This order be found can unlawful discrimination entered, provides Art. 6042 ex- when The Commission the Commission. “ * * * set or va- part, and until aside given power to determine pressly or decree some order cated permit discrimination and question of jurisdiction, all orders of competent instances. Where in certain of Commission ju- matter within any as to discrim- finds no unlawful the Commission *9 facie accepted prima shall be risdiction it is not reasonable ination order, validity.” This pipeline connect evidence to require to feasible discrimination, has never finding unlawful there battery, then producer’s tank with aside, changed, or modified set produc- been for which is no discrimination
321 competent court jurisdiction. Upon its certifying' sued its title policy insurance entry, appеaled Crown Central this order there were no encumbrances to a district court of County, Travis Tex- except the land policy. in the shown as, and the of that at- brought by Suit was Shaver recover tached to determine the of the or- damages against company the title der. For years more than three of an easement across insured land in Central never tried any- the case or did gas company, favor of a easement which thing, shows, so far as this record bring excepted was policy not shown or it to trial. title insurance. The case tried in was court, jury district favor- on a verdict 21, 1964, On August filed Crown Central plaintiff, able rendered its motion with alleging damages for the jury. found When they pipeline had company another the case reached appeal, this Court on would make Duffy’s the connection to tank title company filed a motion dismiss batteries and production. his On moot, cause as reason that since that date the Commission entered an order court, the trial of the case in the district reciting part it opinion gas company pipeline had released the that its February 21, 1962, order of order- easement and abandoned the use of ing connections, would withstand plaintiffs’ across land. This Court order, attack made on and was a valid dismiss, denied the motion saying: but that early providing interest of damages plaintiffs “The seek pipeline connection property in- are those resulting from the breach volved, it February withdrew its order of guarantee defendants’ contract 21, 1962, requiring Crown Central make plaintiffs a good and indefeasible title. Duffy’s connections tank batteries prior Those suffered were PROVIDED, HOWEVER, the withdrawal the trial of this cause in the District order is based solely the com- and the damages, Court amount of such pletion of extension and connection within any, by plaintiffs if suffered а reasonable time or the order for connec- paid. recovery rights been Plaintiffs’ tion would be reinstated. Not one word recompense still exist and can made was said about the discrimination suffered only by them a final determination this by Duffy until the connection was made. moot, case. The case is not and we over The record shows the connections were rule motion defendants’ to dismiss. Sterl made Duffy production purchased at ing 122, Ferguson, 122 Tex. 53 S.W.2d the tank 1, batteries about November ; (1932) 753 Polk v. 145 Tex. Davidson, Then the recognized 200, 196 (1946); S.W.2d 632 3 made, connections had been and there was Tex.Jur.2d 313, Sec. 50.” no further need original for the connection order, and that the matter of extension See the following authorities, also whose connection was now moot. reasoning is holding in accord with our point. 314, Appeal Er & 1, 1964, It was after Tex.Jur.2d November and that ror, 50; p. 53; Sec. id. p. Sec. and id. order, final Commission’s when Crown 58; Public Administra C.J.S. appeal Central secured a dismissal tive Bodies and Procedure p. 629. § Commission order of bar, case, In our case at as in the Shaver 21, 1962. seek recover point they allege nearest case in I have been they suffered they while unlawfully able to find is that National of Shaver v. agаinst by discriminated re Co., Tex.Sup., spondents. Title & Abstract 361 S.W.2d damages, any, These if must be bought litigated (1962), proper wherein Shaver had in a court and not before company is- tract land and the title had the Railroad Gregg Commission. v. Delh *10 i-Taylor Corp., 162 344 S. Oil Tex. (1961).
W.2d 411
I the Railroad would hold (1) given authority by Leg- question as to
islature to determine the A
existence unlawful discrimination. it try issue because
court cannot out this discretion
involves exercise of interest the best public involved utilities and of the it can render
and the character of service public. (2) That existed that discrimination determine had its this case. Crown Central perfecting
day question by order of appeal finding and
an from this never Central has Commission. compe- judgment of a court of
obtained a aside, modifying, setting
tent reversing Therefore, such order. be
valid, now existing order and proceeding.
collaterally in this attacked have a trial of
(3) Plaintiffs must seeking damages and action
cause of case present such
given opportunity to The (4) able to establish. they may incor- summary
granting
rect, tried should be this case
district court. Petitioner, Texas, HOUSTON, CITY OF al., Respondents. INC.,
RENAULT, et B-408.
No.
Supreme Texas. Court
July 17, 1968.
Rehearing Oct. Denied