Railroad Commission of Texas v. Brown Express, 8603.
| Decision Date | 12 May 1937 |
| Docket Number | No. 8603.,8603. |
| Parties | RAILROAD COMMISSION OF TEXAS et al. v. BROWN EXPRESS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Ralph W. Yarbrough, Judge.
Suit by the Brown Express and others against the Railroad Commission of Texas and another. Judgment for plaintiffs, and defendants appeal.
Reversed in part, injunction dissolved, and affirmed in part.
Wm. McCraw, Atty. Gen., and Curtis E. Hill, Asst. Atty. Gen., for appellant Railroad Commission.
W. R. Poage and W. L. Sleeper, both of Waco, and Homer C. DeWolfe, of Austin, for appellants John Harvey Robinson and J. H. Robinson Truck Lines, Inc.
Felts, Wheeler & Wheeler, of Austin, for appellee Brown Express.
Baker, Botts, Andrews & Wharton, of Houston, for appellees Texas & N. O. Ry. Co. and Southern Pacific Transport Co.
Andrews, Kelley, Kurth & Campbell, of Houston (Claude Pollard and Herbert L. Smith, both of Austin, of counsel), for appellees S. A. U. & G. R. Co., St. Louis & B. M. R. Co., and Missouri Pacific Transp. Co.
On February 11, 1936, J. H. Robinson owned two certificates of convenience and necessity, theretofore issued by the Railroad Commission, authorizing him to operate motortrucks as carriers of freight over the highways. Certificate No. 2188 authorized the operation of four schedules weekly between San Antonio and Corpus Christi, but without authority to serve intermediate points on this route. Certificate No. 2875 authorized four round trips weekly between San Antonio and Falfurrias, via Three Rivers and Alice. Robinson applied to the commission for an amendment to these certificates so as to authorize him to operate daily schedules under both certificates and to serve all intermediate points between San Antonio and Corpus Christi under certificate No. 2188. After a long-delayed hearing on this application, the commission on February 11, 1936, amended his certificate as applied for. Thereupon the appellees, who are competing motortruck and railway carriers in the same territory, and protestants before the commission, brought this suit to set aside the order of the commission granting the amendments. Trial was to the court without a jury, and the order amending said certificates was set aside as unjust and unreasonable, and the increased operations thereunder enjoined, from which judgment this appeal is prosecuted.
The first question raised relates to the jurisdiction of the commission to enter its order of February 11, 1936. Appellees contend that the commission had no jurisdiction to enter such order because the same subject-matter was then in litigation. The facts in this regard were: Robinson filed his application with the commission to have his certificates amended on June 26, 1934. No action having been taken thereon by the commission, he filed an amended application on June 15, 1935, on which hearing before the proper officer of the commission was had on December 3 and 4, 1935, and upon the evidence then heard the order of February 11, 1936, was entered. Meantime in August, 1935, Robinson had filed a suit in the district court of Travis county, Tex., and had secured an injunction against the commission restraining it and its agents from interfering with the operations he was then conducting over said routes under his existing certificates. This injunction was in force at the time of the hearing, on December 3 and 4, 1935, and appeal therefrom then pending in this court. That appeal was dismissed in this court on February 11, 1936, and in the trial court on February 23, 1936, after the order here involved had been entered. Manifestly the subject-matter of that suit could not have deprived the commission of jurisdiction over the amendment to these certificates, now here in controversy. The only jurisdiction the trial court could have exercised in that suit (except by way of mandamus to compel the commission to act upon Robinson's application) would have been to review an order entered by the commission. It is likewise manifest that rights asserted under certificates authorizing only four round trips weekly, or service only four days per week, without intermediate pick-up and delivery service between San Antonio and Corpus Christi, constitute an entirely different subject-matter from daily service over the same routes with added pick-up and delivery service between intermediate points. As to the latter, the application had been made in June, 1934, and amended in June, 1935, over which the Railroad Commission acquired unquestionable jurisdiction, and which application was still pending and not acted upon when the suit of August 23, 1935, was filed. Consequently, even granting arguendo that Robinson undertook to litigate the subject-matter of his application for added service in that suit, the trial court had no jurisdiction over it for the obvious reason that the subject-matter was still pending before the commission, and it had not acted thereon nor issued its order relating thereto. It is now settled that the court acquires no jurisdiction over a subject-matter expressly delegated to the jurisdiction of the commission until it has entered its order thereon; and then only are the courts vested with jurisdiction to review the commission's action as evidenced by its order. Box v. Newsom (Tex.Civ. App.) 43 S.W.(2d) 981; Magnolia Petroleum Co., Relator, v. New Process Production Co., Respondent (Tex.Sup.) 104 S.W. (2d) 1106. Under these circumstances, therefore, the court could not, in the injunction suit of August 23, 1935, have litigated the validity nor the subject-matter of the commission's order of February 11, 1936, here involved. It could only have determined the rights of Robinson under the certificates he then had.
The next question presented, and urged by appellees as fatal to the order involved, relates to the sufficiency of Robinson's...
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