Opinion
No. 4746.
June 7, 1934. Rehearing Denied June 28, 1934.
Appeal from District Court, Gregg County; Renne Allred, Judge.
Suit by the State of Texas and another against the Foshee Refining Company, Incorporated. From an interlocutory order granting a temporary restraining order against the defendant, it appeals.
Order vacated and set aside.
The appeal is from an interlocutory order granting a temporary restraining order against the Foshee Refining Company, Incorporated, entered by the judge upon the filing of the petition and before issuance of notice to the defendant.
The suit is in the name, as alleged, as follows: "Comes now the State of Texas and the Railroad Commission of Texas, composed of Lon A. Smith, C. V. Terrell and Ernest O. Thompson, the duly elected, qualified and acting members thereof, hereinafter styled plaintiffs, appearing herein by and through James V. Allred, the duly elected and acting Attorney General of Texas, acting at the request of and by the direction of said Railroad Commission of the State of Texas, and files this its first amended original petition, complaining of Foshee Refining Company, Incorporated, a private corporation, with its principal office and place of business in Gladewater, Gregg County, Texas, and with A. B. Foshee as its President, and W. W. Bradley its Vice-President, both of whom reside in Gregg County, Texas, and for cause of action say:"
The petition then sets up, in substance, that:
1. The statutes of the state of Texas, especially title 102, as amended, prohibit the production, storage, and transportation of crude petroleum oil and natural gas within the state of Texas in such manner as to constitute waste as defined in such statutes.
2. The statutes prohibit the purchase, transportation, or handling of crude petroleum oil from any property in excess of the amount allowed by any statute or any rule, regulation, or order of the Railroad Commission.
3. The Railroad Commission, acting under such statutes, and to prevent waste, promulgated various valid orders (which were listed and identified) limiting the production of oil in the East Texas field to a specific amount for each well, including the order of December 28, 1933, where the limitation was to 5 per cent. of the hourly potential of each well.
4. On February 15, 1933, the Railroad Commission promulgated an order to the effect that no oil should be delivered, accepted, transported, or otherwise handled by any person, firm, or corporation without having a tender therefor, the terms of which order being well known to the defendant and such order was made a part of the petition for all purposes.
5. On September 29, 1932, the Railroad Commission promulgated an order requiring each refinery to file a daily and also a semimonthly report showing the amount of oil purchased, from whom purchased, and the amount sold each day, run to stills, or processed.
6. "Plaintiffs allege that notwithstanding the existence and validity of said orders of the Railroad Commission of Texas, and the duty of the defendant to obey and abide by same, but in open and wilful defiance and disobedience thereof, the defendant has violated the said orders of the Railroad Commission of Texas, in the following manner, to-wit: That from April 17th to April 30th, inclusive, and during the months of May, June, July, August, September, October, and December, inclusive, the defendant purchased or transported or handled crude petroleum, all or a part of which was produced from property in the East Texas Field in excess of the amount allowed by the orders, rules and regulations of the Railroad Commission hereinabove set out, and without in any wise complying with said order of February 15, 1933; that during each day of the respective calendar months mentioned in such schedules the defendant purchased, or transported or handled crude petroleum produced from property in the East Texas Field in excess of the amount allowed by the orders, rules and regulations of the Railroad Commission hereinabove set out and without complying with said order of February 15, 1933. That during the days of March 15th to 18th inclusive, the defendant, Foshee Refining Company, purchased or transported or handled an aggregate of seven thousand two hundred ninety-eight (7298) barrels of crude petroleum produced from property in the East Texas Field in excess of the amount allowed by the orders, rules and regulations of the Railroad Commission hereinabove set out and without complying with said order of February 15th, 1933."
7. The failure of the defendant to comply with the statutes and the orders of the Commission has created liability for penalties of not to exceed $1,000 a day, with each day's violation being a separate offense, and the total amount of the penalties is in excess of the total value of the properties owned by defendant, and a lien exists on such properties in behalf of the state.
8. Unless restrained, defendant will continue to purchase, transport, or handle crude petroleum without complying with the orders of September 29, 1932, February 15, 1933, and other orders which are specifically stated in the petition, and without complying with the laws of the state of Texas and other applicable orders of the Commission, all "to the irreparable damage and injury to plaintiff."
9. Defendant will likely incumber its properties or otherwise evade payment of penalties due and accruing, unless a receiver be appointed.
10. Plaintiff prayed for judgment for penalties, for a receiver, for foreclosure of lien, and for temporary and permanent injunction:
(a) Restraining defendant from purchasing or transporting or handling crude petroleum produced from any property in the East Texas field in excess of the amount allowed by the previously identified rules, orders, and regulations of the Railroad Commission;
(b) Restraining defendant from purchasing, transporting, or handling crude petroleum oil without complying with the order of February 15, 1933;
(c) Restraining defendant from purchasing, handling, transporting, refining, marketing, and processing such oil without complying with said order of September 29, 1932, and without complying with all of the laws of Texas and the orders, rules, and regulations of the Railroad Commission applicable to defendants.
F. W. Fischer, of Tyler, for appellant.
James V. Allred, Neal Powers, and Edward Clark, all of Austin, Bailey Sheppard, of Longview, and Maurice Cheek, of Fort Worth, for appellees.
The injunction is sought for the purpose of enforcing certain orders and regulations of the Railroad Commission of the state, the violation of which being classed as unlawful acts. The decisive answer must depend upon whether or not an injunction, temporary or permanent, may be granted by the court at the suit of, the state, or the Railroad Commission, distinctively as such, restraining refinery corporations from continuing the acts complained of. It is provided by section 7 of article 6049c, Vernon's Ann.Civ.St.: "From and after the promulgation of any rule, regulation or order of the Commission it shall be the duty of each party affected thereby to comply with the same." It is further expressly provided by section 14 of article 6049c that the Railroad Commission shall have the right to a preventive injunction from doing the following particular acts and things: "The purchase, transportation or handling of crude petroleum oil or natural gas produced from any property in excess of the amount allowed by any statute or any rule, regulation or order of the Commission is hereby prohibited, and the Commission shall have power to enjoin any violation of this section." And the following are the parties who may be enjoined at the suit of the Railroad Commission from continuing the acts or things prohibited, namely: "Whenever it shall appear that any party engaged in the production, storage or transportation of crude petroleum oil or natural gas is violating any Statute of this State or any valid rule, regulation or order of the Commission promulgated to correct, prevent, or lessen the waste of crude petroleum oil or natural gas, the Commission, through the Attorney General, may bring suit against such party in any court of competent jurisdiction in Travis County, Texas, or in the county of the residence of the defendants, or any of them, or in the county in which such violation is alleged to have occurred, but not elsewhere, to restrain such party from violating such rule, regulation, or order, or any part thereof, and in such suit the Commission may obtain such preliminary restraining order or temporary or final injunction as the facts may warrant." Section 4. The parties against whom the injunction may be available are, as may be observed, plainly and definitely stated to be "any party engaged in the production, storage or transportation of crude petroleum oil." The words "any party engaged," considered in connection with the associated words of "in the production, storage or transportation of crude petroleum oil," would reasonably give the provision the construction, as the legislative intention to do, of any party engaged in or carrying on the authorized business of production, storage, or transportation of crude petroleum oil. The word "party" is a general term, and may be regarded as legally embracing also private corporations. The provision evidently had in view the oil corporations authorized by law to be created. By express provision of statute private corporations may be created to accomplish the legitimate business for profit the several purposes of producing, storing, transporting, buying, and selling oil. Article 1495. Such a corporation may be created with the powers designated in the charter, if so limited, as pipe lines, refineries, and production. For instance, a corporation may be created for business with power only of owning and operating "refineries" (article 1506) or with powers both to prospect for and produce oil (article 1499) and to maintain and operate a refinery. A corporation may be created only to engage in business of production and sale of oil, or of storing and transporting oil, or pipe lines. Articles 1495-1506. Therefore a corporation created only as a "Refining Company" under the statute would not be classed as authorized to engage in the business, within the meaning of the law, of production, or storage, or transportation of oil. In this view the language of the provision, providing against whom or which corporation the injunction may run, may not be construed, it is thought, to extend to refinery corporations, only incorporated to own and operate refineries. A similar view as to section 5 of the article is expressed in case of Overton Refining Co. v. Terrell et al. (D.C.) 4 F. Supp. 443. And any other view may not, it is believed, be taken in this appeal. It is a general rule of statutory construction that the express mention or enumeration of one person or thing or consequence is tantamount to an express exclusion of all others. The provision must be restricted to the legislative intention, as expressed. The party must be principally engaged in the business of storing oil for sale, and not merely as an incident of operating a refinery. The petition does not charge that the defendant refining company, besides owning and operating a refinery, is also empowered by charter and is engaged in the business of "Refining and Production" of oil. The petition alleges that the "Foshee Refining Company, Incorporated, a private corporation, with the principal office and place of business in the town of Gladewater, Gregg County, Texas," did, at certain times stated, in violation of certain orders of the Railroad Commission, do the particular acts set out in section 6 of the above statement of the case. The party must not only do the prohibited acts, but must also be a party against whom the injunction will lie. The two things must appear. In the absence of allegations that the refinery corporation, besides operating as a refinery, was also engaged in or carrying on the business of producing, or storing and transporting for sale crude petroleum oil, it may not be held that the defendant refining corporation was, as within the terms of the statute, before the court as a party that may be enjoined. A party will not be enjoined from taking certain action, although the action may be deemed wrongful, unless he himself is legally before the court as a defendant. It is the certain rule, long established, that a court is not vested with jurisdiction to grant an injunction at the suit of public authorities unless by express statutory authority or to abate a public nuisance. Ex parte Castro, 115 Tex. 77, 273 S.W. 795, 797; 46 C.J. § 320, p. 740; 14 R.C.L. § 80, p. 379. Quoting from Crowder v. Graham (Tex.Civ.App.) 201 S.W. 1053, 1055: "It is well settled that, in the absence of some statute specifically authorizing the same, an injunction will not lie to restrain the violation of a penal statute, simply because the act enjoined is denounced as an offense." And as clearly stated in Ex parte Castro, supra: "It is quite elementary that a court of equity has no authority to issue an injunction, unless some property right is involved, or some other right which would bring it within the usual rules of equity jurisdiction, or unless it is provided for by statute."
Viewing the proceedings as a suit in the name of the state of Texas, simply as to recovery of penalties, the right to injunctive relief through temporary order is not sufficiently shown and may not be sustained. The injunction appealed from granted to the Railroad Commission, distinctly as such, and the proceedings of the Commission are distinct from the claims of the state for penalties.
The order granting a temporary injunction is here vacated and set aside.