New Way Lumber Co. v. Smith

• Citation: 96 S.W.2d 282
• Decision Date: 15 July 1936
• Docket Number: No. 7013.,7013.
• Parties: NEW WAY LUMBER CO. et al. v. SMITH et al.
• Court: Texas Supreme Court

Page 282

96 S.W.2d 282

NEW WAY LUMBER CO. et al. v. SMITH et al.

No. 7013.

Supreme Court of Texas.

July 15, 1936.

Error to Court of Civil Appeals of First Supreme Judicial District.

Bill by the New Way Lumber Company and others against L. A. Smith and others. An order granting a temporary injunction was reversed and the temporary injunction dissolved by the Court of Civil Appeals [84 S.W.(2d) 1104], and plaintiffs bring error.

Judgment of the Court of Civil Appeals affirmed.

Snell & Snell, Hofheinz & Aynesworth, and Frank E. Mann, all of Houston, for plaintiffs in error.

William McCraw, Atty. Gen., and Vernon Coe, Asst. Atty. Gen., and John T. Maginnis and Baker, Botts, Andrews & Wharton, all of Houston, for defendants in error.

SHARP, Justice.

We adopt the following statement from the opinion of the Court of Civil Appeals:

"This is an appeal from an order of the District Court of the 55th Judicial District, Harris County, Texas, granting a temporary injunction restraining and enjoining defendants in the trial court (appellants here), L. A. Smith, C. V. Terrell, and E. O. Thompson, who compose the Railroad Commission of Texas, the Railroad Commission of Texas itself, Mark Marshall, Director of Motor Transportation for the Railroad Commission of Texas, L. G. Phares, Chief of the State Highway Patrol; Carl Nesbitt, Adjutant General of Texas, and all deputies, inspectors, employees and representatives of the Railroad Commission of Texas and the Director of Motor Transportation; all members of the State Highway Patrol, as well as other representatives of the law enforcement division of the Highway Department; all State Rangers and representatives of the Adjutant General's Department; all Sheriffs, deputy sheriffs, constables, deputy constables, and all police or peace officers of whatever character, and servants, agents and representatives from stopping, weighing, searching, examining, arresting, moving or otherwise molesting or interfering with certain trucks, being those owned by New Way Lumber Company and other plaintiffs in this cause, without a warrant of arrest for the driver or a search warrant duly and properly issued as provided by law, and from stopping, searching, arresting, examining, questioning, delaying or otherwise molesting or interfering with plaintiffs, or either of them, or of any driver of trucks owned by plaintiffs, S. A. Lovelady and W. S. Dunbar, or New Way Lumber Company, in order to discover any violation of article 827a of Revised Penal Code of Texas (Vernon's Ann.P.C.), or of any other law regulating the operation of motor trucks on the State Highways of the State of Texas, without a warrant of arrest for the driver, or a search warrant duly and properly issued as provided by law."

The Court of Civil Appeals held that the order entered by the trial court was improvidently issued, and that the judgment of that court should be reversed and the temporary injunction dissolved. 84 S.W. (2d) 1104.

The first question considered is: Does the operation of the trucks by the New Way Lumber Company upon the public highways of this state require that a permit be obtained from the Railroad Commission, by virtue of the provisions of H. B. 335, now article 911b, Vernon's Annotated Texas Civil Statutes? The pertinent parts of the act applicable here read as follows:

"Sec. 1. * * *

"(f) The term `permit' means the permit issued to contract carriers under the terms of this Act.

"(g) The term `motor carrier' means any person, firm, corporation, company, co-partnership, association or joint stock association, and their lessees, receivers or trustees appointed by any Court whatsoever, owning, controlling, managing, operating or causing to be operated any motor propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed. * * *

"(h) The term `contract carrier' means any motor carrier as hereinabove defined transporting property for compensation or hire over any highway in this State other than as a common carrier.

"Sec. 2. No motor carrier, as defined in the preceding section, shall operate any motor propelled vehicle for the purpose of the transportation or carriage of property for compensation or hire over any public highway in the State except in accordance with the provisions of this Act. * * *

"Sec. 3. No motor carrier shall, after this Act goes into effect, operate as a common carrier without first having obtained from the Commission, under the provisions of this Act, a certificate of public convenience and necessity pursuant to a finding to the effect that the public convenience and necessity require such operation. No motor carrier shall, after this Act goes into effect, operate as a contract carrier without first having obtained from the Commission a permit so to do which permit shall not be issued until the applicant shall have in all things complied with the requirements of this Act.

"Sec. 4. (a) The Commission is hereby vested with power and authority and it is hereby made its duty to supervise and regulate the transportation of property for compensation or hire by motor vehicle on any public highway in this State. * * *

"Sec. 5. No motor carrier shall hereafter operate as a common carrier for the transportation of property for compensation or hire over the public highways of this State without first having obtained from the Commission under the provisions of this Act a certificate declaring that the public convenience and necessity requires such operation. * * *

"Sec. 6. (a) No motor carrier now operating as a contract carrier or that may hereafter desire to engage in the business of a contract carrier shall so operate until it shall have received a permit from the Commission to engage in such business and such permit shall not be issued until the applicant shall have in all things complied with the requirements of this Act; nor shall such permit be issued unless the character of business being done or to be done by the applicant strictly conforms with the definition of a contract carrier."

Plaintiffs in error contend, on the one hand, that they are not "motor carriers for compensation or hire" within the provisions of article 911b, because of the fact that they charge more for their building materials delivered to their customers by their own trucks than they charge at the point of origin. On the other hand, the state contends that because the trucks are used on the public highways of this state to deliver goods to the consumers, and, furthermore, because the cost of delivery, based upon the mileage covered in the delivery to their customers, is added to the price thereof, plaintiffs in error are motor carriers for compensation or hire, and come under the provisions of the law.

The testimony is undisputed that plaintiffs in error are operating trucks, both loaded and unloaded, which are sought to be regulated, along the nonurban highways of this state. The headquarters of plaintiffs in error is located at Houston. The general manager testified that they carry their lumber in trucks to various points in Texas, for which carrying they make a charge for the expense of delivery, which is above the regular price therefor. The difference is based upon the weight and distance, the same as railroads do. The price list is based upon f. o. b. mills price, and the distance is computed for the delivered price.

Texas has a comprehensive program for the building and maintenance of its public highways. Many laws have been passed relating to the subject. A highway commission has been created for this purpose. Some of the outstanding acts enacted are H. B. 336, Acts 1931, c. 282, and S.B. 11, chapter 42, Gen.Laws of Texas, 41st Leg., 2d Called Session, 1929, now article 827a § 1 et seq. of Vernon's Annotated Penal Code, and H. B. 335, Acts 1931, c. 277, now article 911b, Vernon's Annotated Texas Civil Statutes. We cite some of the leading cases construing these acts. H. B. 336, now part of article 827a of the Penal Code (Vernon's Ann.P.C.), was upheld in the following cases: Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; Ex parte Sterling, 122 Tex. 108, 53 S.W.(2d) 294; Ex parte Phares, 122 Tex. 104, 53 S.W. (2d) 297; Holyfield v. State, 124 Tex.Cr.R. 422, 63 S.W.(2d) 386; Stone v. State, 126 Tex.Cr.R. 491, 72 S.W.(2d) 1118. Likewise, H. B. 335, article 911b of Vernon's Annotated Civil Statutes, has been construed and sustained in the following cases: Stephenson v. Binford, 287 U.S. 251, 53 S. Ct. 181, 77 L.Ed. 288, 87 A.L.R. 721; Anderson, Clayton & Co. v. State ex rel. Allred, Atty. Gen., 122 Tex. 530, 62 S.W.(2d) 107; Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.(2d) 505; Texas & Pacific Motor Transport Co. v. Railroad Commission, 124 Tex. 126, 73 S.W.(2d) 509; Texas Motor Coaches, Inc., v. Railroad Commission, 123 Tex. 517, 73 S.W.(2d) 511.

The number of motor vehicles operated on the highways presents many vital questions, among which is the safety of the traveling public and the protection of the highways. The number of motor vehicles using the highways is increasing each year. Chief Justice Hughes, in rendering the opinion for the Supreme Court of the United States in the case of Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 583, 76 L.Ed. 1167, which involved H. B. No. 336, regulating vehicles on highways, Acts 42d Leg.1931, c. 282 (now article 827a § 1 et seq., Vernon's Ann.P.C.), upheld the law and stated briefly some of the facts relating to the public highways of this state and the number of motor vehicles using same, in the following language:

"The District Court made comprehensive findings. These set forth the various interests of the complainant and interveners (common carriers and contract carriers, in intrastate and interstate commerce, and manufacturers and...