Gibraltar Savings Association v. Falkner
| Citation | 351 S.W.2d 534,162 Tex. 633 |
| Decision Date | 15 November 1961 |
| Docket Number | No. A-8286,A-8286 |
| Parties | GIBRALTAR SAVINGS ASSOCIATION, Appellant, v. J. M. FALKNER, Banking Commissioner of Texas, Appellee. |
| Court | Supreme Court of Texas |
Monteith, Bearing & Monteith, Houston, Graves, Dougherty, Gee & Hearon, Austin, for appellant.
Will Wilson, Atty. Gen., Fred B. Werkenthin and C. K. Richards, Asst. Attys. Gen., Black & Stayton, Austin, for appellee.
This case is brought to The Supreme Court of Texas by direct appeal from a judgment of the 98th District Court of Travis County. We have concluded that this Court has no jurisdiction of the appeal and accordingly dismiss it.
On October 11, 1957, J. M. Falkner, the Banking Commissioner of Texas, issued an order which denied approval of the application of Gibraltar Savings Association to open a 'branch savings and loan office' in the Spring Branch area of Houston. The Commissioner's action was taken pursuant to Article 881a-1 et seq., Vernon's Annotated Civil Statutes.
Gibraltar filed this suit appealing from the order of the Banking Commissioner, and seeking both a temporary and a permanent injunction restraining the Banking Commissioner from enforcing the order appealed from. The judgment of the district court decreed (1) that the order was valid, (2) that Gibraltar, its officers, agents, servants, and employees were enjoined from operating the branch office in question, and (3) 'That all relief not herein expressly granted is hereby denied.'
Gibraltar predicates its right to a direct appeal to this Court upon Article 1738a, Vernon's Annotated Civil Statutes. The pertinent provisions of this statute are:
'* * * appeals may be taken direct to the Supreme Court of this State from any order of any trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality or unconstitutionality of any statute of this State, or on the ground of the validity or invalidity of any administrative order issued by any State Board or Commission under any statute of this State.' (Emphasis added.)
It is apparent that this statute gives the appellant the right to a direct appeal to this Court in two situations. The first is '* * * from any order of any trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality or unconstitutionality of any statute of this State, * * *.' Therefore, we must first determine if the order of the district court in the instant case is such an order.
Gibraltar went to trial upon its Third Amended Original Petition, together with its Supplemental Petition. Gibraltar also filed a trial amendment after the trial of the case upon the merits. We have carefully examined these pleadings and have failed to find any place where the order of the Commissioner was attacked on the ground that the statute on which it was based was unconstitutional. However, Gibraltar's pleadings do contain an allegation to the effect that if Falkner should be sustained by the Court in his position that Gibraltar had no right of appeal to or other redress in the courts from his action under Article 881a-1 et seq., Vernon's Annotated Civil Statutes, then 'Article 881a is in conflict with the United States and Texas Constitutions and particularly with the due process clauses thereof, and must fall.' This alternative pleading is conditional in its terms and would have amounted to an attack upon the constitutionality of the statute involved only in the event the Court had held that Gibraltar had no right of appeal or other redress, and that the statute granted to the Commissioner the power to exercise final authority. Since the Court did not hold that Gibraltar was not entitled to recourse to the courts to review the actions of the Banking Commissioner, the constitutional question was never reached by the trial court. Injunctive relief was neither granted nor denied on the ground that the statute is constitutional or unconstitutional.
On December 21, 1960, after the trial of the case upon the merits under the 'substantial evidence rule' had been completed, Gibraltar filed a trial amendment, seeking a permanent and a temporary injunction pending final judgment, enjoining Banking Commissioner, Falkner from enforcing the order entered October 11, 1957, and from imposing any sanction upon Gibraltar by reason of its maintenance and operation of its branch office at 8022 Longpoint Road, Houston, Texas.
On January 18, 1961, the trial court entered its judgment, the pertinent part, being:
'* * * and the Court, having considered the pleadings, the evidence, and the argument of counsel, and being of the opinion that the law and the facts are with the defendant, J. M. Falkner, Banking Commissioner of Texas, and intervenor-defendant, Spring Branch Savings and Loan Association, it is accordingly Ordered, Adjudged and Decreed as follows:
'(1) That the order made and entered on October 11, 1957, denying plaintiff's application to open, operate and maintain a branch office at 8022 Longpoint Road, Houston, Harris County, Texas, is and the same is hereby declared to be a valid, legal and binding order; and that plaintiff take nothing by its suit herein;
'(2) That pending final determination of this cause in the appellate courts plaintiff, its officers, agents, servants, and employees are enjoined and restrained from operating and maintaining the branch office at 8022 Longpoint Road, Houston, Harris County, Texas, and from doing and performing any of the acts or functions therein authorized by Chapter 3, Rules and Regulations, effective January 19, 1958, adopted by the Building and Loan Section of the Finance Commission of the State of Texas;
'(3) That all other relief not herein expressly granted is hereby denied; * * *.'
It is apparent that the judgment of the trial court in the instant case did not determine the constitutionality or unconstitutionality of any statute, including Article 881, Vernon's Annotated Civil Statutes of Texas and Article...
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Mitchell v. Purolator Sec., Inc., B--4544
...holding on the question based On the grounds of the constitutionality or unconstitutionality of the statute. Gibraltar Savings Assn. v. Falkner, 162 Tex. 633, 351 S.W.2d 534 (1961); Standard Securities Service Corp. v. King,161 Tex. 448, 341 S.W.2d 423 (1960); Holmes v. Steger, 161 Tex. 242......
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...invalidity of that administrative order. Mitchell v. Purolator Security, Inc., 515 S.W.2d 101 (Tex.1974); Gibraltar Savings Association v. Falkner, 162 Tex. 633, 351 S.W.2d 534 (1961); Bryson v. High Plains Underground Water Con. Dist., 156 Tex. 405, 297 S.W.2d 117 On November 18, 1974 the ......
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Falkner v. Gibraltar Sav. & Loan Ass'n, 10992
...the Commissioner, we believe that the Trial Court erred in setting aside the order of the Banking Commissioner. Gibraltar Savings Association v. Falkner, Tex., 351 S.W.2d 534; Farb v. State Banking Board, Tex.Civ.App., 343 S.W.2d 508, no writ history; Railroad Commission of Texas v. Gardner......
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