Agey v. American Liberty Pipe Line Co.

Decision Date14 July 1943
Docket NumberNo. 8092.,8092.
Citation172 S.W.2d 972
PartiesAGEY v. AMERICAN LIBERTY PIPE LINE CO.
CourtTexas Supreme Court

John W. Stayton, of Austin, for appellant.

Verne H. Maxwell, of Dallas, D. D. Mahon, of Lubbock, and Dan Moody, of Austin, for appellee.

SHARP, Justice.

This suit was filed by W. M. Agey, on his own behalf and on behalf of the State, against the American Liberty Pipe Line Company, to recover penalties described in Section 11 of Article 6049a, Vernon's Annotated Revised Civil Statutes. He alleged that the American Liberty Pipe Line Company was a common purchaser of crude oil under Section 8 of said Article, and that said company discriminated against him by refusing to purchase oil produced by him in the East Texas Oil Field. The Attorney General refused to join him in this suit. The American Liberty Pipe Line Company filed a plea in abatement, on the ground that Agey could not lawfully institute and prosecute the suit on behalf of the State. The plea was overruled, and upon trial to a jury, upon special issues, judgment was rendered against the American Liberty Pipe Line Company in favor of Agey "on his own behalf and on behalf of the State of Texas," (one-half on behalf of each), for $5,800, being the minimum penalty of $100 per day for fifty-eight days. An appeal was taken by the American Liberty Pipe Line Company to the Court of Civil Appeals, and that court reversed the judgment of the trial court and remanded said cause with instructions. 167 S.W.2d 580. A writ of error was granted.

Respondent contends, among other things, that petitioner could not lawfully institute and prosecute this suit for penalties under Section 11 of Article 6049a without the joinder of the Attorney General or some county attorney or district attorney authorized by law to do so, and that Section 11 of Article 6049a creates a single indivisible cause of action, which must be prosecuted in a single suit, instituted by the State through its proper officials, and that Agey's rights are limited to sharing in the recovery.

Petitioner based his suit for recovery on Section 11 of Article 6049a, Revised Civil Statutes. Such section reads as follows: "Sec. 11. For the violation of any provision of this Act, or for the violation of any valid rule or regulation promulgated hereunder or any order passed by the Railroad Commission in pursuance of any such provision, rule or regulation, such person, association of persons, or corporation shall be subject to a penalty of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1000.00) for each offense recoverable in the name of the State in any District Court in Travis County, Texas, and each day of such violation shall constitute a separate offense. One half of such penalty may be recovered by and for the use of any person, association of persons or corporation against whom there shall have been an unlawful discrimination as herein defined, such suit to be brought in the name of and for the use of the party or parties aggrieved."

Petitioner did not sue for damages under this section, but undertook to maintain this suit on his own behalf and on behalf of the State of Texas, although the Attorney General had refused to join him in the suit.

The controlling question presented here is whether under the terms of Section 11, quoted above, a private individual, without being joined by the Attorney General, or some county or district attorney authorized by law to do so, could maintain his cause of action against a pipe line company for the penalties described in said Section 11.

It will be noted that for a violation of any provision of the Act a person or corporation "shall be subject to a penalty of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1000.00) for each offense recoverable in the name of the State in any District Court in Travis County, Texas, and each day of such violation shall constitute a separate offense." (Italics ours.) It also provides that, "One half of such penalty may be recovered by and for the use of any person, association of persons or corporation against whom there shall have been an unlawful discrimination as herein defined, such suit to be brought in the name of and for the use of the party or parties aggrieved."

The Attorney General is the chief law officer of the State, and it is incumbent upon him to institute in the proper courts proceedings to enforce or protect any right of the public that is violated. Section 22 of Article 4 of the State Constitution, Vernon's Ann.St.; 5 Tex.Jur., p. 373, § 5. He has the right to investigate the facts and exercise his judgment and discretion regarding the filing of a suit. 5 Tex.Jur., p. 380, § 8.

The pertinent portion of Section 21 of Article 5 of the State Constitution reads: "The county attorneys shall represent the State in all cases in the...

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25 cases
  • McGee v. Estelle
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 16, 1984
    ...vests authority to enforce the rights of the state exclusively in the state's attorneys. See Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972, 974 (1943); State ex rel. Hancock v. Ennis, 195 S.W.2d 151, 153, ref. n.r.e. (Tex.Civ.App.1946). Cf. State ex rel. Dishman v. Gr......
  • City of Altus, Oklahoma v. Carr
    • United States
    • U.S. District Court — Western District of Texas
    • May 6, 1966
    ...is, by virtue of his office, generally charged with the enforcement of the laws of the State of Texas, Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972, 974 (1943). Mention is made by us of Article 7477(11), Vernon's Ann.Tex. Civ.Stats., Title 128, Water, Chapter 1, whic......
  • Meshell v. State
    • United States
    • Texas Court of Criminal Appeals
    • July 1, 1987
    ...at 264. Accord State v. Ennis, 195 S.W.2d 151 (Tex.Civ.App.--San Antonio 1946, writ ref. n.r.e.); Agey v. American Liberty Pipe Line Co., 167 S.W.2d 580, 583 (Tex.Civ.App.--Austin 1943), aff'd, 141 Tex. 379, 172 S.W.2d 972 (1943). Although the duties of district or county attorneys are not ......
  • Texas v. Ysleta Del Sur Pueblo
    • United States
    • U.S. District Court — Western District of Texas
    • December 3, 1999
    ...to recover damages for violation of federal anti-trust law permitted him to bring parens patrie action); Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972, 974 (1943) (finding clearly implied authorization for AG to enforce civil penalty provision in specific act). Furthe......
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