*1 Crenshaw, and Walter Caven Charles E. Appellants, al., E. LAW et Austin, C. appellants. Dallas, Currie, Freeman, & Kohen INC., SERVICE, DELIVERY TEXAS appellees. Appellees. al. et Phinney, Pulley, Hallman & No. 15592. amicus curiae. Appeals Texas. of Civil Dallas. DIXON, Chief Justice. 11, 1960. March declaratory judgment a suit for This is April 29, Rehearing Denied injunction brought by appellees Texas Service, Inc.,
Delivery and six com- other panies persons, employees all officials or Department Safety, to re-
Texas prose- appellants from arresting strain appellees alleged cuting violations of Act, Texas Motor Carrier Art. 911b Ann.Civ.St,, and Art. 1690b of the Penal Code. answer,
Appellants, along with their filed pleas jurisdiction, in abatement and to the pleas were overruled. Appellees allege, stipulated a and it is as fact, they engaged local delivery business, property transporting public within Dal- general for hire for the County, las Texas and within the “metro- County. Appellees politan area” of said stipulated, they allege, and further upon operate their trucks never corporate highway included within the not incorporated city town in of an limits County. Therefore claim that Dallas subject Texas Motor are not subject regulation Act, Carrier Commission, Railroad the Texas required apply for and receive public convenience and ne- certificate cessity from the Railroad Commission operate their trucks business. order carriers, operators of common Several railroads, pleas filed of inter- trucks espoused vention, in which cause appellees appellants, asserting that as a subject to the Texas of law are Mo- matter However Atty. Gen., Act. mo- Wilson, N. tor Carrier Lud- Will James Attys. Gen., all Nesbitt, strike was sustained inter- Morgan lum and Asst. *2 except Transporta- Captain Fe venors Santa Trails Law told' of the factual back- companies ground up present Company and three other to the leading contro- transportation versy. Until engaged only in the business of about 19S3 the cities by contiguous whose freight of trucks for hire. boundaries were to those City of the of Dallas were of the cities judg- Following the court entered Highland University Park and Park. appellees en- declaring (1) ment are began grow 1954 other towns until their long operations so titled to continue their contiguous boundaries were of those moving operations confined to such are City the Seeking information of Dallas. incorporated cit- from and and between Captain regarding situation, came County of villages ies, towns and in the Bryan by across a letter written earlier trans- any if in the of such course Bell, Transporta- then Director Motor unincorporated portation highway in no an tion of the Texas Commission. Railroad traversed; meaning of (2) the true area is delivery Bell’s was that local serv- that au- the Texas Motor Act is Carrier ice carriers could town travel from town to thority the Texas Railroad Commis- from County city in Dallas limits of the required except in those in- sion is not anywhere, towns touched regardless journey stances where course of whether the actual route travelled was village incorporated city, town or from one partly public highway. on a Later Chief space intervening an to another there is Odom, following Austin, a conference in highway which is not within Texas, Captain directed Law to enforce the incorporated city, corporate any limits of Act as to going carriers from Dallas to village; ap- (3) town or and the territorial always other cities unless the carriers were plication judgment by the rendered actually city within limits one of only, County court is confined to Dallas contiguous cities. The law was en- scope plead- being forced in that manner until when the ings operations. The court also Attorney opin- General of Texas issued an granted permanent injunction restrain- ion to the effect subject that a carrier is ing appellants interfering with from to the Texas Motor Carrier Act if he operations provided op- appellees said incorporated travels from one town an- scope erations are conducted within the any open even if he does not travel judgment. forth in the limitations set highway road or between towns. Captain Law further testified that he has appears dispute There no about delivery been instructed that local services purposes For facts. of this lawsuit a operate subject which between cities are “metropolitan definition of the term area” Act, though to the Motor Carrier the cit- stipulated following: to be the contiguous ies between route “ * ** municipalities the several space open them includes no high- County in Dallas which have com- way incorporated city; in an he boundary mon City either with the has been ordered to enforce the law ac- itself, municipal Dallas or with a cor- di-, cordingly. However he also has been poration that does have a common Homer rected Col. Garrison the De- boundary with City of Dallas”. partment prose- Safety of Public not to file proceedings in such cution cases until the One of the appellant witnesses was present appeal is determined. Law, Captain License Weight Region Dallas, employee of Texas De- map was introduced in A evidence show- partment of Safety, Depart- Park, Highland ing University Park charged ment is with the enforcement Hill and Cockrell cities with Act, Texas Motor Carrier 911b, Art. contiguous City V.A. to the boundaries Dal- C.S., and Texas Penal las, entirely Code. but are island cities surrounded Prairie, appealed way Grand The cities of by Dallas. Garland, corpus. Farmers habeas Mesquite, Irving, in- Branch, Richardson Lancaster and *3 In ordering the writ and the granting municipalities corporated whose boundaries discharged, relators the is Carrollton contiguous are to Dallas. said : Several contiguous to Farmers Branch. contiguous to municipalities are either “Under the well-established rules of municipalities contiguous or to equity jurisprudence, is clear that contiguous Dallas. to the judge district was authori- without ty injunction to issue the writ of provides Code, 1690b Penal V.A.T.S. prevent the enforcement of the law per- fine of arrest, prosecution and for the regulating operation the motor- It Act. Motor Carrier the sons upon highways trucks the of this state ap- that Act of the provision under petition injunction the unless for such their efforts pellants proceed in intend to clearly showed the existence two appellees. the to enforce law facts, First, viz.: that such law un- where pounds. prosecuting vested law ceeding taken. attempt dismiss attempt ment will ment officials pellees stitutional jurisdiction, ing pellants proceeding diction, equitable raising ings, and to (2) (1) in Appellants’ first In their first enforcing criminal police in attempted property granting have their Ex 294, overruling appellants’ appellants’ suit involving an assert relief The officials load result in stay the hand parte Sterling, 122 Tex. the reason stay stay 295, haulers an defenses, since to be filed; Texas from in truck void, weighed in excess of that adequate three rights. injunctive the was enforcing criminal enjoin criminal of Navarro three enforced is hands the trial irreparable injury to haulers of cotton law a habeas points on if injunction that for want any, remedy except (3) points (b) relief, since proceedings, or equity arresting and police officers claimed in law its plea court corpus pro- County and suit seeks (a) appeal where in trucks at law failing to restrain- proceed- enforce- enforce- will 108, 53 uncon- juris- erred 7,000 law; well the ap- ap- business.” highways vested the structed and maintained tions vested they vasion ordinary carrying common ment of this act. The ants would be extraordinary petition upon issued expense. petition in the case tion was issued do not show the ex- istence of either of said facts. We are further of the its enforcement constitutes a direct in- sist constitutional and the complainants. opinion that he have no vested were issued are not highways is proceeding in which property right highways right shows of a use of No a business for that the carrying vested to use such streets and which the person, has, one for the affected upon and streets are con- in which the or * general public, void; second, property beyond question. allegations highways, its therefore, on a * * right may acquire, injunction the face that no at complainants profit. commercial making, purpose We to so use complain- right enforce- that the * [*] * injunc- injunc- can but are of That that was in- Phares, S. discriminatory, parte Ex In the law 11,000 pounds, slightly facts dif right to haul loads of W.2d had operators operators engaged truck claimed that ferent. The short the same 14,000 carry pound they were entitled to officials were arrested and Police hauls. n placed jail violating the because the routes over which loads receiving operated equity carrier jurisdiction no common denial of the crim- transport points equipped unloading inal courts. handle, bringing the commodities thus Moreover failed to show have 5-b) within Section complainants (Section that the enforcement of statute consti- Act, Chapter 282,42nd of the Motor Vehicle prop- a direct tutes invasion of their vested Legislature, Ann.P.C. art. 827a. erty pointed right. As out in the cases quoted cited, above has a vested no one disposing the above contention right city public high- to use streets and Supreme Court said: ways transportation freight for the *4 complainants’ aver- “The of effect passengers for hire. they are respect is ment this that Among by appellees is cases cited Gal- with criminal by threatened relators State, Corporation veston Truck Line v.. prosecutions which do not for acts Tex.Civ.App, holding 123 The law, S.W.2d 797. fact a violation of said constitute case point there is not in In that here. allegations be “Assuming these brought injunction State for to restrain suit true, inter- is no basis for the still there appellants from the Motor Carrier pow- position equity. The of a court Act. The statute itself Ann.P.C. interpret authority this act er and expressly gives 1690b(c) Art. the State exclusively rest with courts right to maintain such’a suit. jurisdiction. exercising criminal state appeal points Appellants’ on first three not, through the equity A court of will are, sustained. injunction, determine medium of provi- given whether acts violate the Appellants points have three briefed con- statute. sions of Such but first three sustaining in view of our the due struction can be points, pass unnecessary it is for us orderly statute enforcement fourth, points. fifth 'and sixth prescribed for the through the forum will be re- judgment The the trial court criminal cases.” versed, judgment here rendered will uphold appellants’ which Other cases appellees’ cause of dismissing action. Malone, City et al. view this v. -suit 204; Houston, Tex.Civ.App., 278 S.W.2d Rehearing On Houston, Tex.Civ.App., City v. Stecher quote accuracy we In the interest of 925; et ex rel. Flowers 272 State S.W.2d Captain testimony with reference 255, Law al., et 150 al. v. Woodruff Tex.Cr.R. Bryan Bell: letter from Director Kemp Operating Hotel 200 S.W.2d al., City et 141Tex. Wichita Falls v. Co. let- my up I with a “In searches come 217; State, Fer- 90, et al. v. 170 S.W.2d Bryan Bell, wrote Mr. ter that was 272; 60, Bark- guson, 133Tex. 125 S.W.2d we personal opinion, to someone his Tex.Civ.App., Conklin, ley 101 S.W.2d charges against, that had filed et 405; City of San Antonio and Greene v. contigu- that were city limits touched Tex.Civ.App, al., 178S.W. 6. ous, they have au- would not have to thority.” appellants case not al- instant do In the question unconsti- is the statute lege that say Appellees orig- that erred in our we say They in effect that and void. tutional opinion making statement: inal .this interpretation for given the is the statute Code, Penal 1690b’ they have de- “V.A.T.S. a valid contend arrest, prosecution provides them against against its enforcement fense persons violating the Motor conten- fine of prosecution. Such a a criminal provision- It under this Carrier Act. invoke the aid sufficient
657 (affirming 128 Tex. 282 intend S.W.2d Act Co., Tex. Way Smith et al. Lumber enforce v. New efforts to proceed in their ; Anderson, Civ.App., 1104) Clay 84 S.W.2d appellees.” law Allred, 122 ton & Co. et al. v. ex rel. State petition in their point out that Appellees Anderson, Clay 107; Tex. 62 S.W.2d ar- threatened pled Allred, ton & etCo. v. State ex al. rel. ei- their business stopping of rest 453, 82 (reversing Tex. injunc- prosecutions or by criminal ther Civ.App., 544). 68 S.W.2d process. tive study Clayton litigation A Anderson, quoted from paragraph The Anderson, & Clayton properly begins with Captain testimony of on the was based Allred, Co. et 122 Tex. al. v. ex rel. as follows: began suit when S.W.2d 107. The At- asked the “And Colonel Garrison un- petition the State filed its ruling in view torney General authority (c). der The of Art. Sec. ours prosecution, which defendants filed a cross-action. The State *5 *** on one.” be if we would filed then took certi- answering a non-suit. In questions Appeals, fied a Commission of what That is “Q. (By Currie) Mr. opinion adopted, held that where the State Yes, Sir. doing? A. you presently a voluntarily jurisdiction of invokes the where Except this instance “Q. in by submitting rights adjudica- court its for you are stipulation that got we have a thereby, tion it will be bound a defend- case long it as this going not to do as ant will entitled to invoke the court’s be Attorney Gen- pending, or until jurisdiction plead prove or a defense from Colonel eral —A. I have orders germane matter in cross-action to the type those not to file on Garrison present controversy. No in such situation is settled. until this case is cases holding the instant case. The in And- erson, Clayton case 107 S.W.2d bring- “Q. If it hadn’t for been applicable not here. already case, you ing this would have * * * Yes, doing been it? A. sir. Following the the certified answers questions, Clayton Anderson, case was pend- not “Q. If this lawsuit the District where in returned to Court you ing, and received the granted by structed verdict was superiors that your instructions from Judgment court. was affirmed the Court mentioned, you filed you previously Appeals. But the Civil S.W.2d plain- line one of the on a truck such as again case reversed the here, operating tiffs as described presented for holding that a fact issue was as petition, you doing be so their would Anderson, jury. Clay determination Department an official act of Allred, 125 et al. v. State ex rel. ton & Co. Yes, Safety? sir, is the A. ap 941. These later have in this case. interest I peals case and but a involve same “Q. you doing would not be so And of the case involved in 62 S.W. continuation No, Law, A. an individual? as Certainly jurisdiction once having 2d 107. sir. obtained, throughout continued succes been appeals. none sive Under circumstances “Q. doing your You would be support appellees’ appeals lends Yes, capacity? sir.” official A. contention. rehearing appellees In their motion for holding do we think the New
cite three cases which did not cite Neither Smith, v. original Way their briefs. These three cases Lumber Co. 128 Tex. Smith, support Way New et al. .2d lends are: Lumber Co. 96 S.W at- that case the statute contention. and void. being unconstitutional
tacked us make now before
Appellees in case regard allegation claim
no
statute. say in substance
Appellees in case aof interpretation accept their if we statute, they found penal must
valid think statute. We
guilty of said urge their defense should proceed- action, State files 1690b, them, pursuant
ings Ann.P.C.; ainor (b) (a) and Vernon’s
§§ suit to file a action, elects civil pursuant to Art. §
(c), Ann.P.C. over- rehearing is
Appellees’ motion
ruled. *6 DICKASON, Last Executrix
Mabel M. of Catherine Testament Will wife, Deceased, Eugene O’Dell, O’Dell Kathryn Williamson, O’Dell, Bess Merta Blauner, Appellants, Wiolland, A. G. Mathews,
Virgil each O. W. MATHEWS and Independent individually Execu and as W. L. Math Will and Estate of tor husband, ews, Deceased, Nova Foote and husband, Foote, Evelyn Couch and D.C. Appellees. Couch, Ted
No. 6957. Appeals Civil of Texas
. Amarillo.
April 25, 1960. May 23,
Rehearing Denied