Dyer v. Railroad Commission of Texas

• Decision Date: 23 February 1938
• Docket Number: No. 8651.,8651.
• Citation: 115 S.W.2d 1020
• Parties: DYER v. RAILROAD COMMISSION OF TEXAS et al.
• Court: Texas Court of Appeals

Page 1020

115 S.W.2d 1020

DYER v. RAILROAD COMMISSION OF TEXAS et al.

No. 8651.

Court of Civil Appeals of Texas. Austin.

February 23, 1938.

Rehearing Denied March 30, 1938.

Error from District Court, Travis County; W. F. Robertson, Judge.

Suit by Joe Dyer, doing business under the trade-name of the Ozozo Refining Company, against the Railroad Commission of Texas and others, seeking injunctive relief to authorize the shipment of 160,000 barrels of products and by-products of crude petroleum oil. The State, through the Attorney General, intervened, seeking confiscation of the oil on the ground that it had been produced in excess of that allowed under statute. From an adverse judgment, plaintiff brings error.

Affirmed.

John Davenport and J. E. Hall, both of Wichita Falls, and Felts, Wheeler & Wheeler, of Austin, for plaintiff in error.

Wm. McCraw, Atty. Gen., and W. J. Holt, Wm. C. Davis, Charles M. Kennedy, Earl Street, Joe Sharp, Harry S. Pollard, and Marvin Trevathan, Asst. Attys. Gen., for defendant in error Railroad Commission.

S. W. Marshall and Herbert W. Whisenant, both of Dallas, for defendant in error Republic Nat. Bank of Dallas.

McCLENDON, Chief Justice.

Dyer, doing business under the tradename of Ozozo Refining Company, brought this suit against the Railroad Commission, seeking injunctive relief authorizing the shipment of 160,000 barrels of products and by-products of crude petroleum oil in the East Texas Field. The state, through the Attorney General, intervened, and sought confiscation of the property on the ground that it had been produced in excess of the allowable, and was therefore contraband. Various parties alleged to claim some interest in the property were made parties, including the Republic National Bank of Dallas. In a trial to the court without a jury, judgment was rendered denying Dyer the relief he sought and granting the relief sought by the state, confiscating the oil, and ordering it sold. It is stated in the briefs that the property has been sold under this judgment and the money deposited in the registry of the court to abide the final disposition of the case. The appeal (by writ of error) is by Dyer alone.

The bank has filed a separate brief, in which it asks that the trial court's judgment be reformed so as to protect it as holder of a mortgage on the property assertedly superior to the state's right to confiscate. This it predicates upon the proposition that its mortgage was created in September, 1934, at a time when oil products not in possession of the original processor were legal in the hands of an innocent holder, regardless of the source of the oil from which they were produced; and its rights could not be affected by subsequent acts of the mortgagor. We have reached the conclusion that the bank's position in this regard is not tenable.

Additionally, it may be seriously questioned whether the products in issue are the same property as that covered by the bank's mortgage; the latter relating to crude oil and not oil products.

However this may be, the bank has no standing in this court, as it has not appealed from the trial court's judgment. Detroit F. & S. Co. v. State, 124 Tex. 145, 76 S.W.2d 492; Temple Trust Co. v. Haney, Tex.Civ.App., 103 S.W.2d 1035. The rule here invoked is thus stated in 3 Tex.Jur. p. 873: "The appeal by appellant does not give the court jurisdiction to consider cross-assignments by one appellee as against a coappellee."

The major portions of the briefs are devoted to discussion of constitutional questions. Dyer makes several contentions with reference to the validity of the proration and tender orders of the Commission and he statutes under which these orders were made. We will pretermit discussion of these questions as they have all been foreclosed by prior decisions. See Danciger O. & R. Co. v. Railroad Comm., Tex. Civ.App., 49 S.W.2d 837; Culver v. Smith, Tex.Civ.App., 74 S.W.2d 754; State v. Blue Diamond O. Corp., Tex.Civ.App., 76 S.W.2d 852. The main attack upon the proration orders relates to procedural matters in connection with their promulgation. The orders are clearly valid upon their face. They cannot be brought in question in this proceeding, which constitutes a collateral attack. Railroad Comm. v. Marathon Oil Co., Tex.Civ.App., 89 S.W.2d 517, error ref.; Falvey v. Simms Oil Co., Tex. Civ.App., 92 S.W.2d 292, 293.

The judgment of the trial court held the property contraband on the grounds: (1) That it had been illegally produced; and (2) that it had been illegally transported. It is asserted in Dyer's brief that the only factual support of the judgment is the asserted illegal transportation, and that this assertion is not supported because the movement relied upon did not constitute transportation within the meaning of the statute, but was merely for the purpose of storage. As will be noted later, there is a conflict in the evidence as to whether the products in question were in fact those which Dyer claims were moved for storage. Independently of this issue, however, the state did not plead illegal transportation; nor did it contend in the trial court that the property was contraband on that ground. This issue, therefore, need not be considered further. We confine the opinion to the issues presented relating to the state's contention that the property in question was produced in excess of the allowable.

It will be recalled that on December 5, 1934, the Commission passed an order requiring filing on or before December 20, 1934, of an inventory of all oil and oil products on hand in the East Texas Field on December 10, 1934. A subsequent order required inventory as of February 1, 1935. Products not in the hands of the original processor acquired in good faith prior to December 10, 1934, were held not to be contraband,...