Foshee Refining Co. v. State, 4746.
| Decision Date | 07 June 1934 |
| Docket Number | No. 4746.,4746. |
| Parties | FOSHEE REFINING CO., Inc., v. STATE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Gregg County; Renne Allred, Judge.
Suit by the State of Texas and another against the Foshee Refining Company, Incorporated. From an interlocutory order granting a temporary restraining order against the defendant, it appeals.
Order vacated and set aside.
The appeal is from an interlocutory order granting a temporary restraining order against the Foshee Refining Company, Incorporated, entered by the judge upon the filing of the petition and before issuance of notice to the defendant.
The suit is in the name, as alleged, as follows: "Comes now the State of Texas and the Railroad Commission of Texas, composed of Lon A. Smith, C. V. Terrell and Ernest O. Thompson, the duly elected, qualified and acting members thereof, hereinafter styled plaintiffs, appearing herein by and through James V. Allred, the duly elected and acting Attorney General of Texas, acting at the request of and by the direction of said Railroad Commission of the State of Texas, and files this its first amended original petition, complaining of Foshee Refining Company, Incorporated, a private corporation, with its principal office and place of business in Gladewater, Gregg County, Texas, and with A. B. Foshee as its President, and W. W. Bradley its Vice-President, both of whom reside in Gregg County, Texas, and for cause of action say:"
The petition then sets up, in substance, that:
1. The statutes of the state of Texas, especially title 102, as amended, prohibit the production, storage, and transportation of crude petroleum oil and natural gas within the state of Texas in such manner as to constitute waste as defined in such statutes.
2. The statutes prohibit the purchase, transportation, or handling of crude petroleum oil from any property in excess of the amount allowed by any statute or any rule, regulation, or order of the Railroad Commission.
3. The Railroad Commission, acting under such statutes, and to prevent waste, promulgated various valid orders (which were listed and identified) limiting the production of oil in the East Texas field to a specific amount for each well, including the order of December 28, 1933, where the limitation was to 5 per cent. of the hourly potential of each well.
4. On February 15, 1933, the Railroad Commission promulgated an order to the effect that no oil should be delivered, accepted, transported, or otherwise handled by any person, firm, or corporation without having a tender therefor, the terms of which order being well known to the defendant and such order was made a part of the petition for all purposes.
5. On September 29, 1932, the Railroad Commission promulgated an order requiring each refinery to file a daily and also a semi-monthly report showing the amount of oil purchased, from whom purchased, and the amount sold each day, run to stills, or processed.
6.
7. The failure of the defendant to comply with the statutes and the orders of the Commission has created liability for penalties of not to exceed $1,000 a day, with each day's violation being a separate offense, and the total amount of the penalties is in excess of the total value of the properties owned by defendant, and a lien exists on such properties in behalf of the state.
8. Unless restrained, defendant will continue to purchase, transport, or handle crude petroleum without complying with the orders of September 29, 1932, February 15, 1933, and other orders which are specifically stated in the petition, and without complying with the laws of the state of Texas and other applicable orders of the Commission, all "to the irreparable damage and injury to plaintiff."
9. Defendant will likely incumber its properties or otherwise evade payment of penalties due and accruing, unless a receiver be appointed.
10. Plaintiff prayed for judgment for penalties, for a receiver, for foreclosure of lien, and for temporary and permanent injunction:
(a) Restraining defendant from purchasing or transporting or handling crude petroleum produced from any property in the East Texas field in excess of the amount allowed by the previously identified rules, orders, and regulations of the Railroad Commission;
(b) Restraining defendant from purchasing, transporting, or handling crude petroleum oil without complying with the order of February 15, 1933;
(c) Restraining defendant from purchasing, handling, transporting, refining, marketing, and processing such oil without complying with said order of September 29, 1932, and without complying with all of the laws of Texas and...
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...authorities and others. Commercial Standard Ins. Co. v. Board of Ins. Commissioners, 34 S.W.2d 343 (Tex.Civ.App.); Foshee Refining Co. v. State, 73 S.W.2d 1098, 1100 (Tex.Civ.App.); State v. Mapel, 61 S.W.2d 149, 152 (Tex.Civ.App.); State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238; ......
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...v. Sundberg (1849), 5 Tex. 418, 422; Harris County v. Crooker et al. 112 Tex. 450, 248 S.W. 652, 655; Foshee Refining Co., Inc. v. State et al. Tex.Civ.App., 73 S.W.2d 1098, 1100; State et al. v. Mapel, Tex.Civ.App., 61 S.W.2d 149, 152; State v. Richards, 157 Tex. 166, 301 S.W.2d 597. We th......