Railroad Commission v. A. E. McDonald Motor F. Lines

• Decision Date: 20 April 1939
• Docket Number: No. 2206.,2206.
• Citation: 127 S.W.2d 932
• Parties: RAILROAD COMMISSION OF TEXAS et al. v. A. E. McDONALD MOTOR FREIGHT LINES, Inc., et al.
• Court: Texas Court of Appeals

127 S.W.2d 932

RAILROAD COMMISSION OF TEXAS et al. v. A. E. McDONALD MOTOR FREIGHT LINES, Inc., et al.

No. 2206.

Court of Civil Appeals of Texas. Waco.

April 20, 1939.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit in equity by the A. E. McDonald Motor Freight Lines, Incorporated, and others, against the Railroad Commission of Texas and the members thereof to restrain defendants from interfering with the operation of plaintiffs' motortrucks in transportation of freight for hire over state highways. From a judgment granting a temporary injunction, defendants appeal.

Reversed, and injunction dissolved.

Gerald C. Mann, Atty. Gen., and Glenn R. Lewis and Geo. W. Barcus, Asst. Attys. Gen., for appellants.

T. S. Christopher, of Fort Worth, for appellees.

ALEXANDER, Justice.

This is an appeal from a ruling of the trial court in granting a so-called temporary restraining order at an ex parte hearing without the introduction of any evidence. The plaintiffs, A. E. McDonald Motor Freight Lines, Inc., and A. E. McDonald and his wife, brought this suit against the Railroad Commission of Texas and the individual members thereof, and alleged, in substance, that plaintiff, A. E. McDonald, had been engaged in operating motor trucks in the transportation of freight for hire over the highways of the state since 1931, and that during said time he had been engaged exclusively in the transportation of freight in interstate commerce between the state of Texas and other states; that he had applied to the Railroad Commission of the state of Texas for a certificate of convenience and necessity authorizing him to so use the highways of the state, but that the Railroad Commission had refused such permit and was threatening to and would interfere with the plaintiffs in the operation of their business unless restrained from so doing. They alleged that in 1938, the business previously carried on by A. E. McDonald had been incorporated under the name of A. E. McDonald Motor Freight Lines, Inc. Plaintiffs prayed for an order restraining the defendants from in any manner interfering with them in the operation of their trucks in the transportation of freight for hire over the highways of the state. On the 15th day of March 1939, the trial court granted a temporary restraining order as prayed, the same to remain in full force and effect until April 29, 1939, at six o'clock P. M. The defendants appealed.

One of the questions involved in the appeal is whether the Texas Motor Carriers Law (Vernon's Ann.Civ.St. art. 911b), insofar as it requires those engaged in the transportation of freight for hire by motor carrier over the highways of this state to obtain a certificate of convenience and necessity from the Railroad Commission of Texas, applies to those engaged exclusively in interstate commerce. It is appellees' contention that since they were engaged exclusively in interstate commerce, they were not required to secure such certificate from the Railroad Commission. This exact question seems to have been determined adversely to appellees in a suit in the Federal Court to which appellee A. E. McDonald was a party. Thompson v. McDonald, 5 Cir., 95 F.2d 937. This decision was affirmed by the Supreme Court of the United States in McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. ___. A like holding was made by the Court of Civil Appeals at Austin in an opinion by Chief Justice McClendon in the case of Winton v. Thompson, 123 S.W.2d 951, and a writ of error was refused by the Supreme Court of Texas.

Furthermore, the plaintiffs failed to allege a right in themselves to operate motor vehicles over the highways in the transportation of interstate commerce. While they alleged that they have been engaged exclusively in the transportation of interstate commerce over said highways since 1931, they wholly fail to allege that they have a certificate of convenience and necessity from the Interstate Commerce Commission authorizing them to do so, or that they have an application pending therefor. In fact, it was admitted by appellees' counsel on oral argument that during all of the years that they have been so engaged, neither of them has ever had such a permit from either the Interstate Commerce Commission or the Texas Railroad Commission, and that they have been able to so operate only by securing preliminary injunctions here and yonder from the various courts, State and Federal, and by continuing to operate under one of them until another one could be secured. It was further conceded that they had never had a successful final termination of any of said suits. Since they have never had a permit from the Texas Railroad Commission, they could not have been in bona fide operation in interstate commerce over the highways of this state at the time the Federal Motor Carrier Act went into effect and are therefore not entitled to continue to so operate although they may now have an application for an interstate certificate pending before the Interstate Commerce Commission. Federal Motor Carrier Act of 1935, 49 U.S.C.A. §§ 301-327; McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. ___. Since they do not have a certificate of convenience and necessity from either the Interstate Commerce Commission or the Texas Railroad Commission, they have no right to use the Texas highways for the transportation of freight for hire. Consequently, they are not entitled to an injunction restraining the officers of this state from arresting them for doing so.

It is further contended that the Railroad Commission of the state has discriminated against the plaintiffs by granting to others certificates of convenience and necessity while denying to plaintiffs the same right. All such matters could be raised in a hearing before the Railroad Commission on an application for certificate, and if the Commission should act arbitrarily in the matter, such decision could be reviewed by an appeal to the district courts of Travis county, as provided in Vernon's Ann.Civ.St. art. 911b. Jurisdiction to review such a decision lies exclusively in the district courts of Travis county. It cannot be reviewed by an independent suit brought in some other county in the state. Central Freight Lines, Inc., v. C. & S. Motor Freight Lines, Inc., Tex. Civ.App., 125 S.W.2d 615.

It is further contended that the order here sought to be reviewed is a "temporary restraining order" distinguishable from a temporary injunction, and that as a consequence, no appeal will lie therefrom. The order in question was issued by the trial judge at an ex parte hearing at the commencement of the suit upon presentation of plaintiffs' petition and before the rights of the parties had been determined. It restrained the defendants from doing the things designated therein. It was issued on March 15, 1939, and, according to its terms, was to remain in force until April 29, 1939 at 6:00 o'clock P. M., which was the last day of that term of said district court. Revised Statutes, art. 4662, provides that any party to a suit wherein a temporary injunction may be granted or refused may appeal from such order to the Court of Civil Appeals. It is only necessary for us to determine whether or not the order here appealed from is a temporary injunction as used by the Legislature in said statute. According to Standard Dictionary, an injunction is defined as "a judicial order or process, operating upon the person, requiring the person to whom it is directed to do or (usually) refrain from doing some designed thing," and "temporary" is defined as "lasting for a short time only." "Temporary injunction" is defined as "one granted at the commencement of a suit, before the rights of the parties have been determined, in order to restrain the defendant from the commission or continuance of a certain act which is in dispute. Such an injunction may be made perpetual or be discharged, according to the decision of the courts in the suit concerned." The order here sought to be appealed from meets all of these requirements. It is a judicial order granted at the...