Railroad Commission of Texas v. San Antonio Compress Co.

• Decision Date: 07 May 1924
• Docket Number: (No. 6751.)
• Citation: 264 S.W. 214
• Parties: RAILROAD COMMISSION OF TEXAS et al. v. SAN ANTONIO COMPRESS CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

264 S.W. 214

RAILROAD COMMISSION OF TEXAS et al. v. SAN ANTONIO COMPRESS CO.^*

(No. 6751.)

Court of Civil Appeals of Texas. Austin.

May 7, 1924.

Rehearing Denied June 18, 1924.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by the San Antonio Compress Company against the Railroad Commission of Texas and others. From order overruling motion to dissolve temporary injunction, the Commission appeals. Affirmed.

W. A. Keeling, Atty. Gen., Frank M. Kemp, Asst. Atty. Gen., and A. J. Wirtz, of Seguin, for appellant.

Wm. Aubrey, of San Antonio, and Hart, Patterson & Hart, of Austin, for appellee.

BAUGH, J.

The San Antonio Compress Company, a corporation, doing a compressing and bonded warehouse business in the city of San Antonio, brought this suit against the Railroad Commission of Texas and the Galveston, Harrisburg & San Antonio, Missouri, Kansas & Texas, and San Antonio & Aransas Pass Railway Companies, to set aside as unjust, unreasonable, and discriminatory circular No. 5887, being an exception in favor of the town of Seguin to the general rule of the Railroad Commission, regulating the concentration of cotton for warehousing. It appears that the Railroad Commission promulgated several years ago a general rule requiring cotton, at the option of the shipper, to be concentrated for compression between points of origin and destination. If compressed at the first available compress en route, the railway company bears the expense of compressing; but, if not compressed at the first available compress, then the shipper must bear such expense. This rule seems to have been uniformly enforced by the railway companies in Texas. By compressing cotton the hauling capacity of the cars is approximately doubled. In the past few years numerous warehouses have been constructed throughout the state under laws passed to encourage same and under the supervision and regulation of the commissioner of markets and warehouses, and much cotton has been concentrated for warehousing and protection from damage by the weather. To meet competition many of the compresses over the state have constructed warehouses in compliance with the laws and regulations and have become bonded warehouses. In November, 1921, the Railroad Commission promulgated a rule known as circular No. 5456, amending commodity tariff 1-G, which gave to those shipping cotton for warehousing in bonded warehouses, the same advantages in freight rates as were given those who concentrated cotton for compressing; that is, where cotton was shipped to final destination from the warehouse during the same cotton season or within six months thereafter, the shipper could pay a through freight rate from point of origin to point of destination, and was entitled to a return of the local "flat" rate paid from point of origin to the warehouse. This was designated as a "concentration adjustment." The order or circular above mentioned, however, contained the following limitation upon this privilege of the shipper, viz:

"The concentration adjustment herein provided `for warehousing' shall not be available when the haul into the warehousing point was from or past a station at which, at the time of the movement, there was located a state or federal bonded warehouse with capacity, available at that time, to have accommodated the shipment."

This circular or order seems to have been issued by the Railroad Commission at the instance of the commissioner of markets and warehouses, and to have been intended to encourage the construction of bonded warehouses locally, as well as to conserve the shipping facilities of the railways. Under this rule, and after conferring with the commissioner of markets and warehouses, and for the purpose of caring for additional cotton that would come to it as a result, the San Antonio Compress Company built, at a cost to it of about $25,000, additional facilities for housing cotton, and qualified as a bonded warehouse. It appears to be undisputed that as a matter of fact where compresses have bonded warehouses practically all of the cotton warehoused with them is also compressed by them before being shipped to final destination.

However, on June 14, 1923, after a hearing on the matter, the Railroad Commission issued circular No. 5887, amendatory of circular No. 5456 above described, containing the following exception:

"The provisions of paragraph (d) shall be waived on cotton consigned `for warehousing' to Seguin, Texas, from all stations on the Galveston Harrisburg & San Antonio Railway, the Missouri-Kansas-Texas Railway of Texas, or the San Antonio & Aransas Pass Railway, distant less than one hundred (100) miles from Seguin, and shipments from such stations shall, when demanded, move `flat' into such warehousing point,"

— paragraph (d) being the portion of circular No. 5456 above quoted.

So far as shown by the record this is the only exception to the general rule regulating concentration for warehousing that has been made in Texas. The appellee, San Antonio Compress Company, under article 6657, R. S. 1911, attacked this exception by filing suit in the district court of Travis county, Tex., on July 14, 1923. On that day the district court granted appellee a temporary injunction against the Railroad Commission and the three roads named, restraining them from obeying, observing, or enforcing the exception granted in favor of Seguin. Upon motion made by the Railroad Commission to dissolve this injunction, filed on July 27th a hearing was had on August 17, 1923, and the motion to dissolve was by the trial court in all things overruled. From this action the Railroad Commission alone appeals.

Opinion.

Appellants predicate error of the trial court under three propositions of law. The first is that "the district court is without authority or jurisdiction to suspend an order, rate, or rule of the Railroad Commission of Texas until said order, rate, or rule has been adjudicated to be unreasonable, after a trial or hearing on the merits," citing articles 6656, 6657, and 6658, R. S. 1911, and Garson v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119.

Article 6656 taken alone would seem to indicate that such a contention is correct. The law creating the Railroad Commission and defining its powers and duties discloses an intention to clothe that body with a semijudicial character, and but for articles 6656, 6657, and 6658, there would be some doubt as to the authority of the court to review its actions at all, except in cases where the Commission's rules, rates, regulations, etc., proved to be confiscatory, and amounted to taking property without due process of law. See G. C. &amp S. F. Ry. Co. v. R. R. Com. of Tex., 102 Tex. 338, 113 S. W. 741, 116 S. W. 795; R. R. Com. v. Weld & Neville, 96 Tex. 404, 73 S. W. 529. Though the powers of the Railroad Commission are far reaching and important, and though article 6658, Revised Statutes, casts upon one attacking the acts of the Commission a more onerous burden of proof than is required in civil suits generally, article 6657 clearly subjects its orders, rules, regulations, etc., to review by the courts in a proper proceeding brought by an aggrieved party for that purpose, and imposes upon the courts the duty of determining whether or not such rules and regulations are unjust, unreasonable, or discriminatory. And in doing so the law provides that such actions "shall be tried and determined as other civil causes in said court." In answering a certified question as to the power of the courts to review the acts of the Railroad Commission, Judge Brown uses the following language:

"In actions of this character the courts will determine the question of the reasonableness and justice of any matter by the same rules as if it were an issue in other classes of suits, except as to the conclusive character of the evidence." R. R. Com. v. H. & T. C. Ry. Co., 90 Tex. 355, 38 S. W. 756.

See, also, Galveston C. of C. v. R. R. Com. (Tex. Civ. App.) 137 S. W. 745; G. C. & S. F. Ry. Co. v. R. R. Com., 102 Tex. 353, 113 S. W. 741, 116 S. W. 795.

Except as to character of proof required, and the precedence given such suits...