*1 NATUR- et v. COMMUNITY al. TERRELL et al. GAS CO. AL
No. 12683. Appeals Dallas. Texas. of Civil
Court April 1938. May 28,
Rеhearing Denied McCraw, Atty. Gen., Wm. and Alfred Scott, Blackstock, M. Leo G. Mad- William Hill, Harry Pollard, Atty.
den Assts. Gen., appellants. Roy Coffee, Newcomb, C. Marshall War- Collins, Leachman, Robertson, ren Payne, J. Dallas, Lancaster, Gardere & all-of appellees. LOONEY, Justice. is from an order that we temporary injunction, construe question presented decisive being, whether below of the suit.
The ground facts constitute the back- controversy: February On 1938, the Railrоad Commission of Texas and entered its minutes the following order: Texas, “Austin, Feby 2, 1938 “On this the 2nd came for consideration fixing Texas the Commission of matter and fair and natural service tip in the burner the various cities Texas, and, appearing to the 6066, inclusive, Re- 6050 to Articles under vised Civil amended, Texas, 1925, Statutes of Ann.Civ.St. art. 6050 Railroad Commission Texas et original given concurrent incorporat- bodies of all in the State of cities and towns ed *2 proceed wоrk said order in which just and fair in the fixing in the matter of applications natural tip for are filed with the Commission. charged burner to be gas at the service, gas and natural Austin, Texas, “Done 2nd at this February, appearing the Commission “It further incorporated great majority of the that a “Railroad Commission of Texas do cities and- towns of the State “C. V. Chairman engineers, employ the means with which to Smith, “Lon A. Commissioner purpose of experts for acсountants and ascertaining Thompson, “Ernest O. Commissioner”. property the valuation of pursuance policy and, In in companies in dis- set by forth gas used and useful just copied, the order as authorized tributing gas ascertaining the fair inor by mentioned, in therein Commis- operating expenses incurred reasonable sion, distribution; February on lack and en- and that due such of available funds with employ which to tered its minutes the order: prosecute casеs such assistants and rate determination, their final fair reason- towns cannot establish the gas, and charged able rates to be for appearing “It further of the statutes by creating the enacted Gas Division of the Railroad Com- Utilities Texas, mission there was levied and paid by in the being gas consumers of “Whereas, City City Council of the percent State a tax of one-fourth of one Trenton, Texas, February 5, 1938, re- gross receipts gas, natural quested the Railroad Commission of Texas purpose regulating said tax is for the to extsreise its lawful in de- industry passed gas the natural and is on termining fair property value of the respective in each the ultimate consumer Community Compafiy Natural Gas used Texas, city and town served serving and useful in gas in natural 'City determining company of Trenton and reason- appearing “It further to the Railroad expense able serving Commission of Texas that it has a stаff of purpose natural ascertaining expert engineers and accountants whose fair and charged reasonable rates to be services should be made available purpose service; for natural and gas tip fixing burner rates within “Whereas, City and towns of by cities of Trenton its duly February 5,1938, enacted resolution of “It is therefore declared and so ordered relinquish did by its by Commission of Texas that Statutes, Article Revised Civil engineers, auditors thе services amended, Vernon’s Ann.Civ.St. art. experts and the are here- same and by to the Railroad Commission of Texas bodies made available to requested exercise incorporated cities and served of the by 6050-6066, by Articles Revised Civil ferred purpose natural amended, jurisdic- Statutes, ascertaining fair and reasonable being original and tion so conferred charge’d for natural rate to be fixed plenary; and within such gas and naturаl service appearing Railroad Commis- “It and towns of the State. City Trenton sion Texas further ordered the Commission by “It is employ techni- unable to is cians affected Utilities the 189 towns Gas successfully prosecute required to upon which Ill and work was No. Docket looking toward the determina- hearing rate done, pursuant to said order fair and reasonable rates to be tion of Ill, the time Article 1119 No. at Docket Community Natural Gas amended, Vеrnon’s Ann.Civ.St. City of Trenton. Company extending ordered, adjudged, and popula- is therefore and towns of two thousand Community less, up Natural Gas first decreed that and com- appear upon application being Company before Com- pleted filed with the the m., o’clock a. said cities and mission of ten Trenton, gathering information 21st, data, a fair and in order to determine information and detailed present full charge'd rate to be fór gas reasonable serving investment by the 31, appellees; that the orders December Trenton as of *3 thereunder and action taken pertaining to Commission information all and law; not authorized its are the conduct of expense and income that, restrained, proposed and unless City for the utility gas years business appellees will appellants action of cause inclusive. 1931to injuries damage, for which irreparable they and ordered that Com- further speedy, complete and Company submit munity Natural Gas remedy at law. with connection additional information judge the trial City On operations and investment order, until restraining effective may issued a Railroad Commission of Trenton the 14th, hearing on on which date a March to the de- pertinent deem and temporary a writ was application for of fair and reasonable termination request appellants, the hear- Uрon in the set. Company to 7th, March ing was advanced and set for City of Trenton. they plea to the urged a at which time Austin, Texas, this the 8th “Done at that, court, contending jurisdiction of the February 1938. 6059, R.S., and exclusive venue under Art. of Texas “Railroad Commission suit were conferred jurisdiction of the “C. V. Chairman competent upon “a court Commissioner, Smith, “Lon A. therefore, County”; prayed that in Travis Thompson, “Ernest O. Commissioner”. aside and the restraining order be set Comрany owns and The Cities Gas overruled cause dismissed. distributing plants operates and and and, after plea to pellants’ hearing systems in about cities temporary in- application State, including towns El 8th, an order March junction, entered Paso; Community Natural Gas in effect restraining order continuing the Company operates- distributing owns and 4th, directing appellants April until systems in plants and about 200 incor- temporary “why a appear and show cause porated and of the towns issue”, all of injunction not should Trenton; including the town of each excepted, gave notice of appellants by appellees, the cities and towns served appeal. perfected this and their customers are sold natural —for this court Appellees contend that pur- lighting, heating, power and other appeal, be is without poses rights franchise and ordinance —under simply 8th was order of March cause the privileges granted by and the cities and order, restraining a continuation of towns, respectively. this con appealable. We overrule and utility companies brought These two court, a having had tention. trial against this suit members application for a regular hearing of Texas and certain of their Commission injunction, evidence temporary relief, agents, seeking injunctive temporary heard, order arguments trоduced alleging in permanent; substance entered, ostensibly continuing effect (appellants herein) the defendants acting were 4th, April served restraining order until' threatening in excess act was, tem a legal effect purpose of statutory authority, juris- in exercising appealable. therefore injunction, porary appellees, affecting diction over matters Terrell, 122 etc., Tex. Co. v. Alpha, See they statute—in iiot ordering directing appellees were appellees, that it obvious We regard information in their produce by the aggrieved considering themselves investments in the operations and being dis Pa^o, El assuming the action Trenton orders' and with inspect satisfied taken and books right and thereunder, brought threatened appellees; agents records of the the enjoin execution this suit checking the books by the appellees in their offices in and rеcords thereunder —that threatening juris- threatened Dallas, assume books, authority examine the assuming investigate diction for the records, etc., appellees, records, ostensibly books
8 records, books, an examination of the rate determining fair and reasonable etc., operations, appellees, in or- in said business charged consumers to be would case, opinion, intelligently der determine what in our cities. The towns and is R.S., just a fair and rate to be clearly within .be Appellees are “court in said and towns. jurisdiction is —“a 6050,' County”. utilities with reference which Art. jurisdiction in Travis competent provides “Every exclusive, case that: jurisdiction being by hereby category declared to affected from that is not removed subject jurisdiction, interest and reason of the insistence trol of the Commission as the acts the orders provided They required by appellants herein”. threatened thereunder *4 6052) maintain in (Art. of the statute offices the State utterly void. The gas books, records, explicit, papers, the' effect where where their vouch- ers, etc., utility may “dissatisfied (such appellees) found, is at all as times be classification, rate, any with the decision of Commission, under the direction the in- of order, regulation rule, charge, spected act or by experts and audited and account- by Commission, dissatis- such the (Art. 6065); may ants also said utilities be may petition party fied file a or required reports to file sworn as to their ob- particular the of setting forth cause properties, operations, (Arts. business etc. competent jection in of thereto a court 6056-6060), by and Art. “The Com- County against in the Travis mission-after due notice shall fix es- and n * * Commission as defendant tablish and the enforce and rea- price gas sonable of and fair and reasonable that, in- of cоntention charges rates and regulations of trans- corporated as authorized porting, producing, distributing, buying,, by (amended Art. 1119 selling delivering gas by pipe such lines 1119), Ann.Civ.St. Art. and Art. subd. State; in this and shall establish fair and original jurisdiction exclusive equitable regulations rules and full compensation the determine and fix the be supervision gas gas pipe control utilities for furnished towns; lines and all customers in cities and their holdings pertaining the n gas’ the of the Commission business in all their relatiоns to the subject only appellate, as public, the may as the Commission from time totime deem 6058; Art. the orders provided in proper; and establish a fair Commission, the equitable proceeds division of the the of n thereunder com- and threatened taken plained statute, gas sale of between trans- wholly unauthorized porting producing or gas and the com- hence were panies distributing it; selling or pre- County to en- of Dallas scribe and regulations rules and enforce sought. grant relief tertain the suit and government and control of pipe respect lines in gas pipes to their lines, and case, disposing In it will not producing, receiving, transporting and dis- juris- to determine the for us facilities; tributing regulate dictionj either of portion supply between towns- fix towns or that cities, corporations, sup- when the' charged gas .in cities rates to be and consumers ply by any gas pipe controlled line towns; upon neither are we called inadequate, the Commission shall appellate juris determine the extent of the prescribe fair and reasonable rules reg- under Art. diction the Commission requiring ulations gas pipe lines presented questions are not for our these supply gas, when in the augment It is obvious that the decision. practica- judgment the Commission is neither determined nor fixed so; power., and it shall exercise its ble to do -fоr in the furnished upon upon peti- own Paso, its Trenton, El or whether motion town-.of elsewhere; but, . corporation, by any person, municipal think, in the exercise as we county, corporation, pre- or commissioner’s general supervisory of its control over showing á substantial interest cinct subject gas, oil and Attorney- upon petition R.C.S., subject, provisions of 6004 et .or Title General, .any or district attor- 6053,. the Com particularly county.wherein ney such business or ini agents taking mission and were any part may be carried on.” thereof tiatory steps prosecute investigation is, 6053, sup ence to ultimate decision—that provisions of provisions found in the whether or not the Commission and plemented by other think, agents subject, acting to act proposing we germane to the law, without the tribunal set conferring the Com have mission an effect up by adjudication super is a overlordship statute make control competent jurisdiction regard court of utilities vision of the affairs statute, County. expressed in the to all all their “pertaining business The activities of the Commission fall un- public, relations der reg- four classifications—that (1) * may proper time from deem time to etc., rates, ulation of appeal railroad public” we “The referred to respect is from their action in this think, merely the inhabitants includes given by 6453, 6454, R.C.S.; Arts. (2) the sparsely communities аnd un settled trucks, motor busses and State, incorporated villages such as appeal provisions being Art. of the statutes themselves util are so located as avail 911a, 911b, 20; (3) subd. 17 and Art. service, greater por far ity includes the- regulation and oil conservation of the larger within the residing tion incorporated and gas resources of the towns and cities. We think provision *5 being of the statute Art. presume Legisla that the unreasonable to 8; 6008, 24; (4) regulation the § § ex ture intended that the elaborate and utilities, provision appeal being of the pensive set-up the con Art. 6059 now under consideration. gas-utility trol of the business was for the relatively benefit alone the few consum appeal provisions stat- several ers located without cities and precisely purpose utes have the same —that towns. Art. 1119 the time At enactment the giving the affected industries the 1913, 1907, when the appeal frоm the action of the Commis- passed (now Home Rule Act was 12 United, etc., sion. In the case of Co. v. 1175), conferring upon incorporated of Art. Tex.Civ.App., writ 89 S.W.2d power fix the be refused; question presented towns under arose Statute, gas, conditions were far differ gas" provision utilities public from ent those is Construing same 6059, as instant case. today. 1105) as : (page confronted Natural a com the Austin Court said “ * * * commodity scarcely known, appellаnt Nor mercial was does the fact that confiscatory alleged that the rate was customarily supplied con- was jurisdiction fer locally, venue or than in elsewhere hence the manufactured county, Travis plates because article contem- 6059 position were in bodies of cities attacking suit the rate order accuracy data ascertain with reasonable upon any ground brought, in so far rates; just upon which base fair and court’s relates to state today, utility pipe own lines that venue, in the district court Travis ramify different sections belt county”. Altgelt Co., The case v. State, supplying hundreds of Tex.Civ.App., missed, dis- 101 S.W.2d towns, and if excluded from the arose the oil and con- expert through benefit of assistance servation division of the Commission’s ac- ministry the Railroad Commission in tivities; with reference to the upon accurate gathering data provision : (page 1106) the same court rates, base consumers telligently nothing in "We find of sec- corporated gas in the Vernon’s Ann.Tex.Civ. main, sheep be as before the will shear Stats., limiting the district court of Travis ; think it was intention of we do not er pass- county to what it shall consider them in Legislature leave such a validitiy ing on the Commission’s plight. Exclusive is -order. validity’ question such courts ‘to test the involves the pari of the commission. And since statutes materia order construction law, validity can stituting although enacted dif- such be determined in no other one forum, county is having no reference district court ferent times to one implication another; by necessary being, effort authorized to de- ascertain the Leg- of title to minerals consistent termine'the uniform and islature; involved, necessary so, if determine that be we without refer- 724): point (page language in Commission’s validity non of the vel county Gregg “That the jurisdiction courts order”. set aside annul the Hudson, Tex.Civ. The case of Allred v. and that under the con App., arose ju courts of Travis have exclusive provision of the servation well es risdiction is now here, there, the action of contended 8, supra, jurisdic is tablished. Section utterly Dispos void. tional and To not a venue statute”. contention, things, among ing other of that etc., Co., Alpha, same Terrell effect see: v. 231): “We do not (page this court said 821; Alpha Tex.Civ.App., 54 Petro S.W.2d subject, yet deem it to discuss the leum Co. v. 122 Tex. S.W. express opinion proration act 364, 372; 2d v. Magnolia Petroleum Co. enactment, and is a valid Edgar, Tex.Civ.App., 62 S.W.2d the Railroad Commis that neither order of Coleman Railroad Commission et al. v. face, sion, upon complained void Bros., Tex.Civ.App., S.W.2d 697. but, if that the statute or or conceded opinion commission, that the court proper judicial Because ders of the we consideratiоn, jurisdiction, the tem- uncon below was without ought to be declared appli- porary injunction and the question re is dissolved stitutional and still the mains, power what tribunal is clothed with cation therefor is dismissed. Ap- pronounce death? sentence of pellee insists, strenuously, as the stat Rehearing. On Motion for unconstitutional, ute and ligation perfectly no ob orders are comply. him rests This is YOUNG, Justice. language, as sound constitutional The sole before us on this Marbury Chief Marshal in Justice peal jurisdiction of the as to the trial *6 60, Madison, Cranch, 2 v. 1 L.Ed. suit, our court to entertain conclusion contrary legislative ‘A act the constitu else- that exclusive' * * * law’; is not ‘that an act re where, 6059, R.C.S., under Article with constitution, void,’ pugnant ap go concur. But we should I not 'pellants strenuously assert as that the stat further merits of other and discuss the valid, that, perfectly ute and raised, exercising jurisdiction issues thus officers, duty compel it is their questions which we hold the trial court So, situation, obedience thereto. in this authority had no determine. As to the judge appellee between what tribunal is to authority extent or nature of the lawful appellants appellants? think the We utilities, Title- over conclusively question: answers the 102, R.C.S., particu-' seq., art. 6004 et Section 8 at the act Fourth thereof, larly I Article 6053 feel we should Legislature (chap Called Session of the 42d express- oрinion, being' no 26, chapter amending ter section 8 of 2), province original within Acts of the First Called Session of same appellate County- de- courts of (Vernon’s Ann.Civ.St. art. cide. ‘Any 8), provides that: interested § party affected the conservation laws of LOONEY, Justice. petroleum relating crude this State oil dissenting While neither from the deci- thereof, gas, and the waste or natural nor questioning sion of the case the sound- rule, Act, by any cluding or this reasoning origi- ness of the set forth in the promulgated by made or order or Com opinion, nal Associate YOUNG has Justice thereunder, may and who be dis mission paper, raising pro- filed a therewith, have the shall satisfied priety says part: he “As to the —that competent jurisdic file suit in a court nature of the lawful extent or County, else tion Travis not utilities, appellants over under Title where, against the as defend R.C.S., particular-, 102 6004 et art. laws, rules, ant, validity to test ’” ly * * * 6053 thereof I feel Article we should or orders. The re regulations opinion, express matters being Lee, parte Ex 127 cent case of Tex. province, original ap-, within the pellate and-gas the oil arose under Travis, courts of to decide”. provision of the conservation n improper provision, jurisdictional or not it to its the Whether uij: referénce Court, through Sharp, to have discussed Supreme the extent used' Justice appellants authоrity of nature of the lawful utilities, readily KORN et al. v. et al. etc., may JOHNSON be de- over below raised termined when 3675. No. As stated in this court is understood. Appeals Texas. El Paso. Court of Civil opinion: two original “These May 19, 1938. against mem- brought this suit Railroad Commission of bers of the and Rehearing June Denied injunc- seeking agents, certain of relief, temporary al- permanent; tive leging in the defendants substance herein) acting threat- (appellants statutory ening authоr- to act excess of ity, exercising jurisdiction over matters - affecting appellees, stat- not *(cid:127) * * adopted by ue that the- orders sthe Commission and there- -under are law; authorized restrained, pro- unless appellants appel- posed action of will cause injuries irreparable damage, for lees complete they speedy, have no .and remedy Pursuing this at law”. idea, appellees this court: contended before “that, incorporated as au- (amended thorized 1119), Ann.Civ.St. original .exclusive fix the com- to determine and pensation .be utilities for gas furnished customers in towns; only subject is 6058; that provided in Art. appellate, as *7 Commission,and thereunder and threatened wholly unauthorized complained hence the jurisdiction to County had Dallas court of relief grant the suit and entertain sought”. perfectly apparent that Thus, I jurisdic- sought to maintain County Dallas' district court of the district against :(as
n County) ground on the sole of'Travis proposed action and be en- Commission, sought - absolutely joined, only being the statute. authorized 'by appellees, d am at a loss raised considered could be how it understand .to same; "'discuss impropriety height been the have would fact,' I think only given'the not to impropriety (cid:127)of discussion; failure full a' raised play presenting be like Would do so character) (chief Hamlet Hamlet with ‘ . omitted.