Ex Parte Duncan

• Decision Date: 17 June 1936
• Docket Number: No. 6873.,6873.
• Citation: 95 S.W.2d 675
• Parties: Ex parte DUNCAN.
• Court: Texas Supreme Court

95 S.W.2d 675

Ex parte DUNCAN.

No. 6873.

Supreme Court of Texas.

June 17, 1936.

Original application by Dick Duncan for a writ of habeas corpus to procure his release from a commitment issued pursuant to a judgment of the Court of Civil Appeals adjudging him guilty of contempt of that court.

Order granting temporary writ of habeas corpus set aside, and relator remanded to the custody of the sheriff.

Dewey Lawrence and F. W. Fischer, both of Tyler, for relator.

William McCraw, Atty. Gen., and Tom D. Rowell, Jr., Merton L. Harris, and L. H. Engelking, Asst. Attys. Gen., for respondents, State of Texas, and Railroad Commission of Texas.

SHARP, Justice.

On December 17, 1934, the Honorable Walter G. Russell, district judge of the Seventh judicial district of Texas, in cause No. 5637A, styled the state of Texas et al. v. Tyreco Refining Company, a corporation, granted plaintiffs' application for a temporary writ of injunction, and from which judgment an appeal was taken to the Court of Civil Appeals for the Sixth Supreme Judicial District at Texarkana. On February 14, 1935, relator, Dick Duncan, was adjudged guilty of contempt of that court for violating the terms of the injunction issued by the district judge of Smith county, and a commitment was issued directing that Duncan be taken into custody by the sheriff of Bowie county and held for ten days. Relator seeks by original habeas corpus proceedings release from this commitment. This writ was issued on the application of relator on the 16th day of February, 1935.

On March 1, 1935, the Court of Civil Appeals affirmed the judgment of the trial court. Tyreco Refining Co. v. State, 81 S. W.(2d) 291. On November 13, 1935, the application for writ of error was dismissed by this court.

We quote from the opinion of the Court of Civil Appeals rendered in this case as follows:

"The appeal is from an interlocutory order granting a temporary injunction against the Tyreco Refining Company, Inc., entered by the judge upon the plaintiffs' verified petition, and before issuance of notice to the defendant.

"The suit is brought in the name of the State of Texas and the Railroad Commission of the State of Texas appearing by and through the Attorney General of the state of Texas acting at the request and by direction of the Railroad Commission of Texas, and seeks to recover statutory penalties against the defendant, Tyreco Refining Company, a corporation, for alleged violation of certain provisions of Revised Statutes, title 102, particularly article 6049c, as added by Acts 1931, 42d Leg. 1st Called Sess., c. 26, p. 46, § 4 et seq. and for alleged violations of certain orders, rules, and regulations of the Railroad Commission of the state of Texas, particularly its orders of February 15, 1933, and April 3, 1934, and December 5, 1934, made a part of plaintiffs' petition and alleged to be valid orders promulgated and passed by the Railroad Commission of Texas to prevent the waste of crude petroleum oil. Said orders in substance and effect provide:

"`Order of February 15, 1933: That oil produced in the East Texas field shall not be delivered, accepted, transported or otherwise handled by any person, firm or corporation without having a tender therefor issued by the Railroad Commission in terms as provided for in the order.

"`Order of April 3, 1934: Requires each refinery to file daily reports with the Oil and Gas Division of the Railroad Commission showing the amount of oil purchased each day and from whom purchased and the amount sold and/or run to stills and processed each day; and the filing of monthly reports giving specified data.

"`Order of December 5, 1934: Requires that every person owning or processing any product of crude oil who desires to have transported such product from any oil field in the State of Texas or from any refinery or any other plant, must first secure from the Railroad Commission of Texas a permit in writing authorizing such person to have such product so transported, and that certain information shall be furnished the Railroad Commission precedent to issuance of said permit.'

"The petition shows that defendant is a party amenable to the provisions of said orders of the Railroad Commission of Texas, under the terms of R.S., article 6049c, subjecting thereto `any party engaged in the production, storage or transportation of crude petroleum oil or natural gas,' by allegations as follows:

"`That the defendant, Tyreco Refining Company, is by its charter authorized to and is in fact engaged in storing, transporting, buying and selling oil and gas, salt, brine, and other mineral solutions. This corporation accepts and adopts all provisions of Chapter 15, Title 32, of the R.C. S. of 1925 [article 1495 et seq.] and amendments thereto, and shall have all the powers and be subject to the limitations therein contained.'

"The petition states specific acts alleged to have been committed by the defendant on certain dates which constitute violations of each of said orders of the Railroad Commission, and further alleges:

"`That the defendant has hereto failed and refused and still fails and refuses to comply with said orders, rules and regulations, and has been and is purchasing and transporting and handling crude petroleum which was produced in excess of the amount allowed by the orders, rules and regulations of the Railroad Commission of the State of Texas, and without in anywise complying with said order of February 15, 1933, and said order of April 3, 1934, and said order of December 5, 1934.'

"Plaintiff prays for judgment, for penalties, for a receiver, foreclosure of lien, and for temporary injunction, and that upon hearing such temporary injunction be made permanent, restraining the defendant, its agents, servants, and employees:

"(a) From further purchasing or transporting, or handling crude petroleum produced from any property in the East Texas field in excess of the amount allowed by the orders, rules, and regulations of the Railroad Commission set out,

"(b) From further purchasing or transporting or handling crude petroleum without complying with said order of February 15, 1933,

"(c) From further purchasing, handling, transporting, refining, marketing, and processing crude oil without complying with said order of April 3, 1934,

"(d) From shipping or causing to be shipped or transported any product of crude petroleum oil from any oil field or from any refinery, topping plant, blending plant, gasoline plant, or other plant, at which the product is manufactured and processed, situated within the State of Texas, unless and until a permit for such shipment has been issued therefor in conformity with the provisions of said order of December 5, 1934."

On the 12th day of January, 1935, the appellees in Tyreco Refining Company v. State of Texas et al., pending in the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, filed their affidavit and motion in contempt, wherein it was alleged that Dick Duncan, during the pendency of the appeal aforesaid, had committed certain acts constituting contempt of said Court of Civil Appeals, and the motion was set down for hearing on February 1, 1935, and notice thereof given to Dick Duncan and his attorney of record. On February 1, 1935, the motion and affidavit in contempt, together with the answer thereto, were heard by the Court of Civil Appeals, and on the 14th day of February, 1935, the court announced its order, judgment, and decree thereon. The order recited in substance, among other things, that on the 17th day of December, 1934, the Honorable Walter G. Russell, district judge of the Seventh judicial district of Texas, in cause No. 5637A, styled the State of Texas et al. v. Tyreco Refining Company, a corporation, granted plaintiffs' application for a temporary writ of injunction restraining the defendant, its officers, agents, servants, and employees from committing, among others, the acts set out above in the opinion of the Court of Civil Appeals under subdivisions (a), (b), (c), and (d) thereof.

On December 18, 1934, defendant filed its bond, perfecting its appeal from the trial court to the Court of Civil Appeals at Texarkana. On January 3, 1935, a transcript of the record was filed in the Court of Civil Appeals. On January 12, 1935, motion and affidavit of complainant seeking to have Dick Duncan adjudged in contempt of the Court of Civil Appeals, for violation of said injunction, were filed in the Court of Civil Appeals. On February 1, 1935, the hearing and trial were had on the contempt proceedings, and it was made to appear to the Court of Civil Appeals that Dick Duncan, officer and agent of the Tyreco Refining Company, after the appeal of the case had been perfected to the Court of Civil Appeals, and on, to wit, the 6th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, and 16th days of January, 1935, had violated the injunction and committed the acts restrained, and in particular of causing and suffering to be removed and transported by trucks refined petroleum products from its refinery at Arp, in Smith county, Tex., without having obtained any permit or tender therefor from the Railroad Commission of the state of Texas, required by its order of December 5, 1935. The court concluded its order in the following language:

"Upon due consideration of the record and of the evidence presented to this court, we find that said injunction was a valid and subsisting order and was not for any reason void, and that while the case has been pending on appeal in this court, the respondent, Dick Duncan, an officer and agent of said corporation, and after notice did on the dates and in the manner hereinabove stated, violate the terms of said injunction.

"Wherefore it is adjudged, by reason of the premises, that the respondent, Dick Duncan, is guilty of contempt of this court and that punishment of the said Dick Duncan be and is hereby assessed at imprisonment in the county jail for a period...