Opinion
Waggoner Carr, Atty. Gen., Norman V. Suarez, Asst. Atty. Gen., Austin, Ralph W. Currie, Sp. Asst. Atty. Gen., Dallas, for appellant.
Clark, Thomas, Harris, Denius & Winters, James H. Keahey and Wallace McLean, Austin, Joe G. Fender, Houston, Callaway, Reed, Kidwell & Brooks, Dallas, for appellees.
HUGHES, Justice.
Oil Field Haulers Association, Inc. and its individual members have filed a second motion for rehearing in which they make the contention that since the appeal from the rate order of the Commission results in a de novo trial in the District Court that the rate order was suspended immediately upon the filing of the suit (appeal), and that for this reason alone the Trial Court properly enjoined its enforcement. In support of this contention they cite State by and through State Board of Morticians v. Cortez, 160 Tex. 532, 333 S.W.2d 839 and Chemical Bank & Trust Company v. Falkner, Tex. 369 S.W.2d 427. Neither of these cases is an appeal from an order of the Railroad Commission. They are controlled by different statutes from those before us; hence there is no need to analyze them.
In State by and through State Board of Morticians v. Cortez, supra, it is stated, 'That appeal de novo, as in the case of an appeal from the justice court to the county court, sets aside and annuls the order of the court or body from which the appeal is taken--in the absence of some saving clause in the language of an act--* * * is well settled by the decisions of this Court.' The appeal here is under Article 6453, Vernon's Ann.Civ.St., which specifically provides for the issuance of temporary restraining orders and preliminary injunctions by the Trial Court.
The authority of the Trial Court to grant a temporary injunction in an appeal under Article 6453 was sustained in an opinion by this Court in 1924, Railroad Commission of Texas v. San Antonio Compress Co. Tex.Civ.App., 264 S.W. 214, writ of error refused, 114 Tex. 582, 278 S.W. 1115.
The motion is overruled.