Railroad Commission of Texas v. Real

• Decision Date: 07 February 1935
• Docket Number: No. 8302.,8302.
• Parties: RAILROAD COMMISSION OF TEXAS et al. v. REAL.
• Court: Texas Court of Appeals

80 S.W.2d 494

RAILROAD COMMISSION OF TEXAS et al. v. REAL.

No. 8302.

Court of Civil Appeals of Texas. Austin.

February 7, 1935.

Appeal from District Court, Travis County; C. A. Wheeler, Judge.

Action by George Real against the Railroad Commission of Texas and others. From an order granting a temporary restraining order pending hearing for temporary injunction, defendants appeal.

Reversed and remanded.

Wm. McCraw, Atty. Gen., and T. F. Morrow, Archie D. Gray, and W. J. Holt, Asst. Attys. Gen., for appellants.

Bailey Shepperd, of Longview, and Felts & Wheeler, of Austin, for appellee.

McCLENDON, Chief Justice.

January 28, 1935, Real brought this suit to enjoin the members of the Railroad Commission and other officials from enforcing, as to 100,000 barrels of fuel oil, "a by-product of crude petroleum oil," situated in the East Texas oil field (Smith county), an order of the Commission promulgated December 5, 1934, under authority of section 1, chap. 45, p. 104, Acts 1934, Second Called Session, 43d Legislature (Vernon's Ann. Civ. St. art. 6049c, § 5), whereby tenders as a prerequisite to shipment of crude petroleum and the products thereof were required, and as prerequisites to such tenders certain inventories and other data were required to be furnished the Commission. The detailed provisions of the order are not material to the instant appeal. On the same date the trial judge in chambers issued what is styled a "temporary restraining order," without notice or hearing, "to expire and terminate on the 8th day of February, A. D. 1935, at 10 o'clock a. m.," restraining all defendants from enforcing the order as to the named products. Application for temporary injunction was set for hearing at the latter date, at which time defendants were ordered to show cause why the sought temporary injunction should not be granted. January 31, 1935, defendants sought to appeal from this order by filing the record in this court; at the same time they filed a verified motion, which has not been controverted, seeking a temporary injunction restraining Real from moving the products pending hearing upon the appeal; and in the alternative prayed for a writ of prohibition, inhibiting the district judge from enforcing the order. A temporary restraining order was issued against Real, pending a hearing upon appellants' application for temporary injunction and writ of prohibition; and a temporary injunction was thereafter issued against Real, pending decision of the appeal and application for writ of prohibition on their merits, both of which proceedings were submitted by agreement of all the parties on February 2, 1935, at which time also a motion by Real to dismiss the appeal was submitted.

In view of the importance of a final adjudication of the matters involved by the Supreme Court as early as practicable, we will not enter into a detailed discussion of the legal principles involved, but merely state, as briefly as we may, the conclusions we have reached.

The motion to dismiss the appeal was predicated upon a correct general proposition of law, that a mere temporary restraining order of a trial judge pending hearing upon an application for temporary injunction is not appealable. The verified and uncontroverted showing of appellants in this case is to the effect that the ex parte order of the trial court, which was to continue in effect for eleven days after its date, was to destroy the entire subject-matter of the litigation, namely, the effectiveness of the Commission's order as applied to the products involved, in that in the meantime before the hearing date of the application for temporary injunction, the products would be removed beyond the jurisdiction of the court, and the entire case would thereby be rendered moot. Regardless of the power of the district judge to pass an ex parte restraining order (a subject briefly averted to below), appellants contended that the instant order, although in form only a temporary restraining order and limited in its application to a fixed time beyond which it ceases to operate, was in effect an injunction, either temporary or permanent; and that the order did not partake of the nature of a mere temporary restraining order, designed solely to preserve the status quo pending hearing upon the application for temporary injunction, but in its practical effect contained all of the elements of an injunction, both temporary and permanent, in that it actually destroyed the subject-matter of the litigation. In this conclusion we agree. Our statutes give the right of appeal from a temporary injunction, the clear purpose of which is to give immediate right of review when the temporary restraining powers of the trial judge are exercised or denied. True, generally speaking, the trial court has the...