86 S.W.2d 52 | Tex. App. | 1935
In the lower court Texas Farm Products Company, a corporation, was plaintiff, and appellants, Texas Railroad Commission, its individual members and its employees, all the Texas sheriffs and their deputies, the Texas Rangers, and others, were defendants. We take the following summary of appellee's petition from appellant's brief: "The Appellee alleged in its petition that it was a corporation to carry on the business of Texas Farm Products Company, which is a Fertilizer Plant, making and delivering all grades of fertilizer, and in connection with the manufacturing of fertilizers making and delivering all classes of grain, feedstuffs, corn meal, etc., to its customers located throughout East Texas; that it had expended large sums of money in building up its business, and owned four trucks described in the petition; that article 827a of the Revised Penal Code of Texas [Vernon's Ann. P. C.] which regulates the operation of vehicles and particularly section 5, subdivision (b) of said Article is unconstitutional and is in violation of sections 3, 9, 10, 17 and 19 of article 1, and of section
Without service of notice and without a hearing, the judge of the Second judicial district, in chambers, on appellee's ex parte application, granted a temporary injunction restraining appellants from attempting to enforce against appellee the provisions of article 827a, Vernon's Ann. P. C., from stopping and weighing its trucks, from arresting or detaining its truck drivers, etc. The effect of the injunction was to permit appellee to load its trucks in excess of the 7,000 pounds allowed by article 827a, notwithstanding its *53 penal provisions; the injunction was granted on the allegation that article 827a, Vernon's Ann. P. C., on the facts alleged in the petition, was unconstitutional and void. Appellants perfected their appeal direct from the order granting the temporary injunction.
On authority of L. A. Smith et al. v. New Way Lumber Co.,
The facts of that case are as follows: New Way Lumber Company owned and operated a fleet of motortrucks for the distribution of its products to its customers over the state highway system. The cost price of its products to its customers was the price at the mill, plus the cost of the transportation to the place of destination; it was the contention of appellees that they made no profit in hauling their products from their mill to their customers. Appellees had no permit from the State Railroad Commission authorizing them to use the highways in transporting their products. On the facts stated, the Galveston court held that appellees were motor carriers for compensation or hire within the terms of Vernon's Ann.Civ.St. art.
In support of its conclusions the court cited: Ex parte Sterling,
In this case appellee made no allegation that it had a permit from the Railroad Commission. It was transporting its products over the highways of Texas as New Way Lumber Company was transporting its products.
Since this is an appeal from an ex parte order granting appellee a temporary injunction, without notice, appellee's petition must be construed by the following proposition announced by 24 Tex.Jur., p. 222: "In view of the severity of injunction, a clear right thereto must be alleged and proved. All facts necessary as a basis for the injunction must be averred, provided they are not judicially noticeable or presumed. It frequently has been said, in varying phraseology, that the petition must negative every hypothesis on which the act enjoined might be lawful. Or, as otherwise stated, `The material and essential elements which entitle him (petitioner) to relief shall be sufficiently certain to negative every reasonable inference arising on the facts so stated, from which it might be deduced that he might not under other supposable facts connected with the subject, thus be entitled to relief.'"
Having alleged the character of its business, and that it was transporting its products over the state highway system, appellee was required by this proposition to allege facts showing that it was not a motor carrier for compensation or hire within the terms of Vernon's Ann.Civ.St. art.
Appellee has filed two motions: First. To strike appellants' brief on the ground that it contains no assignments of error. This being an appeal from a temporary injunction, briefs are not required. On this proposition, in Holland Texas Hypotheek Bank, etc., v. Linscome,
Second. The second motion is to dismiss the appeal on the ground that appellants failed to file an appeal bond. This motion is overruled for the reason that the State Railroad Commission is not required to give an appeal bond. In so far as the motion relates to other parties, on the issue of cost, it is not shown that the parties other than the Railroad Commission have incurred any cost properly taxable against them individually. But, as we understand the record, all the cost incurred was incident to the appeal by the State Railroad Commission. For that reason this motion is overruled.
Since appellee failed to allege facts showing that it was not subject to the penalties of Vernon's Ann.Civ.St. art.
