Eubanks v. State

• Decision Date: 28 May 1947
• Docket Number: No. 9637.,9637.
• Citation: 203 S.W.2d 339
• Parties: EUBANKS v. STATE.
• Court: Texas Court of Appeals

203 S.W.2d 339

EUBANKS v. STATE.

No. 9637.

Court of Civil Appeals of Texas. Austin.

May 28, 1947.

Rehearing Denied June 18, 1947.

Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Action by the State against S. J. Eubanks, doing business as Ideal Butane Gas Company, to recover statutory penalties for alleged failure of defendant to comply with regulations of Railroad Commission. From an adverse judgment, defendant appeals.

Reversed and rendered.

Allen, Smith & Neal and Ira J. Allen, all of Houston, and L. Hamilton Lowe, of Austin, for appellant.

Price Daniel, Atty. Gen., of Texas, and J. A. Amis, Jr., Asst. Atty. Gen., for appellee.

BAUGH, Justice.

Appeal is from a default judgment in favor of the State against Eubanks for $5,000 statutory penalties, assessed under the provisions of Sec. 19, Art. 6053, Vernon's Ann.Civ.St., as amended by the 49th Legislature in 1945.

Judgment was taken on January 10, 1946. On that day appellant's attorney mailed at Houston, Texas, to the District Clerk of Travis County, an answer to the State's petition. Because of the intervening week-end, said answer was not received by said Clerk until Monday, January 13. Appellant thereafter, on January 17, filed a motion to set aside the default judgment, and for a new trial, and on January 23 an amended motion, setting up his defenses to the State's suit. Said motion was overruled, hence this appeal.

While the question of appellant's diligence in failure to answer seasonably is raised, in view of the defenses made, and the conclusions reached by us, we deem it unnecessary to discuss that issue. Suffice it to say, however, that under all the facts and circumstances shown, we do not consider such failure of appellant as intentional, nor the result of such conscious indifference and neglect, as would warrant the trial court in denying said motion on that ground.

The principal contentions made in the trial court and here are: (1) That Sec. 19 of Art. 6053, Vernon's Ann.Civ.St. Acts 1945, 49th Leg. p. 629, ch. 358, § 1, under which said penalties were invoked, is void for uncertainty; (2) that the regulations of the Railroad Commission promulgated under said Act, with violation of which appellant was charged, are also void for uncertainty; and (3) that the proof offered by the State on which the default judgment was based, will sustain, at most, a penalty for only one day's violation.

Sec. 19 of said Act provides: "Sec. 19. The failure of any person or persons, firm or corporation, municipal or otherwise, or any association engaged in manufacturing, distributing, storing, or handling such gases in this state or, manufacturing, selling, installing, using, fueling, or refueling such containers and pertinent equipment as set out in this Act, within forty-eight (48) hours after the receipt of any order of the Commission, to comply fully with this Act or any such order, rule, or regulation, shall be a violation of this Act, subjecting such person, or persons, and the officers and executives of such named concerns to a penalty of One Hundred ($100.00) Dollars for each day that they shall fail to comply with such Act; and the Attorney General is empowered to bring suit for the collection of the same in the District Court of Travis County, Texas. Acts 1920, 36th Leg., 3rd C.S., p. 18, ch. 14, § 3; Acts 1937, 45th Leg., p. 737, ch. 364; Acts 1939, 46th Leg., p. 501, § 1; Acts 1945, 49th Leg., p. 629, ch. 358, § 1."

It is an elementary rule of construction in this State that penal statutes be strictly construed; and the more severe the penalty, the more rigid the construction. Bevill v. Young, Tex.Civ.App., 167 S.W.2d 573, writ refused; 39 Tex.Jur., § 146, p. 276. And such statutes, to meet the requirements of the constitution, must be sufficiently definite, clear, and unambiguous that those subject to their provisions may know with reasonable certainty what they mean and who is liable to punishment for their infraction. Missouri K. & T. Ry. Co. v. State, 100 Tex. 420, 100 S.W. 766; Sheppard v. Giebel, Tex.Civ.App., 110 S.W. 2d 166; Railroad Comm. v. F. W. & D. C. Ry. Co., Tex.Civ.App., 161 S.W.2d 560, writ refused.

The Act here involved renders the violator subject to having his license to do business revoked, his operation completely enjoined, a fine under Sec. 5 thereof, and the penalties prescribed in Sec. 19. Such is the severity of the Act.

If a dealer in liquid petroleum gas violates such Act, or the regulations of the Commission, he may be summarily prosecuted under Sec. 5 without being given advance notice thereof, or any period of grace in which to comply. Not so with penalties under Sec. 19. While the provisions of Sec. 19 are penal in nature, the enforcement prescribed is by civil suit. And the condition of recovery is whether or not the defendant has failed "within forty-eight (48) hours after the receipt of any order of the Commission, to comply fully with this Act or any such order, rule, or regulation, * * *." In the instant case the record shows that the Commission had, prior to April 1, 1946, pursuant to said Title 102, Art. 6053, promulgated a comprehensive set of rules published in pamphlet form consisting of 46 pages, regulating various phases of the gas industry, a copy of which was mailed to appellant in May, 1946. Does the statute mean then that at any time in the future, after the expiration of 48 hours from the receipt of such set of regulations by appellant he was subject to penalties for violation thereof, without further notice or warning? It is not asserted that he had, prior to October 5, 1946, violated any of such regulations, received by him in May. Does the 48-hour time limit provided in said Section relate to the initial promulgation of a new rule, and apply to operations which then constituted a violation...