Waters-Pierce Oil Company v. State , 47 Tex. Civ. App. 162 ( 1907 )

Concurring with Chief Justice Fisher in the views so well expressed and sustained on the paramount question in this case, the writer deems it proper to reduce to writing his views upon the questions upon which we are unable to agree. Upon those questions I am of the opinion that this court has the power to appoint a receiver, and that it should do so, in view of the facts stated in the verified motion and not in any wise controverted. I am also of the opinion that this court has the power to and should issue a writ of injunction, or some other appropriate writ, against Mr. Dorchester, requiring him to surrender the property of the defendant, the Waters-Pierce Oil Company, to the receiver appointed by this court.

1. As to the first question, in the absence of statutory authority, I am not prepared to hold that the appellate courts of this State do not possess the inherent power to appoint receivers whenever such action may be necessary to a proper disposition of the litigation upon final appeal. That valuable compendium, the American English Ency. of Law, in volume 8, page 28, states the rule upon that subject in the following language: "Every regularly constituted court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and to prevent any abuse of its process." And the Supreme Court of the United States in Pacific Ry. Co. of Missouri v. Ketchum,95 U.S. 23, which was pending in that court on appeal, considered an application presented for the first time in that court for the appointment of a receiver. The application was not dismissed nor refused upon the ground that the court was without jurisdiction to appoint a receiver; and the court, speaking through Chief Justice Waite, said: "Without undertaking to decide whether a case may not arise in which we would exercise the power of appointing a receiver pending an appeal in this court, we are clearly of the opinion that we ought not to do so upon the showing made here." But, aside from the question of the general and inherent power of this court to appoint a receiver, and without committal upon that subject, the writer is satisfied that such power has been conferred, and now exists, by the second section of the Act of the Thirtieth Legislature, which was approved and became operative April 11, 1907. It is there provided "Whenever a corporation against which the State has heretofore instituted suit, or shall hereafter institute suit, for the forfeiture of its charter or cancellation of its permit, or for fines or penalties, under any law of this State, shall dissolve in this or any other State, or shall have a judgment rendered against it in this or any other State for the forfeiture of its charter, the court in this State in which such suit is pending shall appoint a receiver for the property and business of such corporation within this State, or that may come or be brought within this State during such receivership; or the court may, in any case wherein the State is suing any such corporation for the forfeiture of its charter or of its permit to do business in this State, or for fines or penalties, appoint a receiver for such corporation whenever the interests of the State may seem to require such action."

It will be observed that in framing this law, when the matter of power to appoint receivers was reached, the Legislature did not limit that power to the District Court, or any other court designated as a class, nor to the court in which the suit was instituted, but in clear and unambiguous language, conferred that power "upon the court in this State in which such suit ispending." The other reference to the court thereafter made in the same sentence and authorizing the appointment of a receiver whenever the interests of the State may seem to require it, is not, in terms, limited to the trial court and is equally applicable to an appellate court. It is not denied, and must be conceded, that the case is now pending in this court, and that the State is suing a corporation for the forfeiture of its permit to do business in this State and for fines and penalties, and no other court has jurisdiction over it. Therefore this court comes within the literal terms of that portion of the statute which confers jurisdiction to appoint a receiver; and I find no reason in any portion of that law for the conclusion that the Legislature did not intend that the language referred to should have its ordinary and usual significance. On the contrary, the rule of construction prescribed by statute in this State requiring statutes to be liberally construed in order to accomplish the legislative purpose, and the legislative history of this State upon the subject to which this statute relates, and especially the manifest purpose intended to be accomplished by this statute, lead, it seems to me, to the inevitable conclusion that it was the intention of the Legislature to confer power to appoint a receiver upon any court exercising jurisdiction over the case at the time of the happening of the contingencies referred to in the statute. It is not unreasonable to presume that the Legislature had in mind the probability that, in some instances, the contingencies referred to might arise after the case was disposed of in the trial court and was pending on appeal in an appellate court; and that, for that reason, the broad language referred to was used in order to better protect what the Legislature regarded as the interests of the State. Since 1889 the Legislative Department of this State has been enacting laws upon the subject of trusts, and each successive enactment has been an enlargement of those preceding, and they all manifest a fixed and continued purpose to control corporations and prevent them from committing acts regarded by the Legislature as detrimental to the public interest. Various other enactments of the Thirtieth Legislature disclose such purpose, but the one under consideration makes manifest an intense purpose to reach out and make available instrumentalities and powers not heretofore used for the purpose of rendering effective anti-trust legislation.

And here it is not inappropriate to quote and apply the language of Chief Justice Stayton in Galveston, H. S. A. Ry. v. State, 77 Tex. 410: "In construing a constitution, or any other law, the object sought is the true intent of the lawmaker, which must be ascertained from the language in which the law is written, and in considering this it is always important to keep in view the object which the law maker intended to accomplish through its enactment. The more intensely the law maker may be seen to have desired to accomplish the given purpose, the more weight should be given to the language used in a law looking to that end." While this language was used in a dissenting opinion it announces rules of construction that are well settled, and that seem specially applicable in the construction of the statute now under consideration.

Hence I conclude that this court comes within both the letter and spirit of that portion of the statute referred to which confers power to appoint receivers. If such power constitutes original jurisdiction it was competent for the Legislature to vest it in this court, because the Constitution as amended in 1891 expressly authorizes the Legislature to confer other jurisdiction, both appellate and original, upon the Courts of Civil Appeals. As published in the Revised Statutes, that provision of the Constitution is omitted, but it is, nevertheless, a part of that instrument. If the court has the power to appoint a receiver, I think the facts stated in the application and not controverted, make it appear that the interest of the State seems to require such appointment to be made.

2. By the terms of article 997 of the Revised Statutes of this State, the Courts of Civil Appeals have the power to issue writs of mandamus and all other writs necessary to enforce their jurisdiction. Of course, it can not be successfully contended that one court can issue and enforce any process against another court of co-ordinate jurisdiction and control its official action; but when a court goes beyond the limits of its jurisdiction, and undertakes to do that which it has no power to do, such action is null and void; and it is for this reason and upon this ground that I hold that this court can properly issue an injunction against Mr. Dorchester. Authorities cited in the main opinion of Chief Justice Fisher satisfy my mind that this court had jurisdiction of the property of the defendant Waters-Pierce Oil Company, and that that property was incustodia legis when the judge of the Circuit Court of the United States attempted to appoint Mr. Dorchester receiver of that property; and, such being the case, the authorities referred to and many others, establish the proposition that the Federal Court at that time had no power to appoint a receiver for the property, and that the alleged appointment of Mr. Dorchester was and is absolutely null and void. My views on that subject can not be better expressed than by borrowing the language of the Supreme Court of the United States in Covell v. Heyman, 111 U.S. 176:

"The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States it is something more. It is a principle of right and law and, therefore, of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system so far as their jurisdiction is concurrent; and although they co-exist in the same space, they are independent and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, thatres is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void."

As I understand the law, whenever an alleged official act is in excess of power and utterly without authority, such act can confer no power or right upon any one. Hence I am of the opinion that as Mr. Dorchester's alleged appointment as receiver is absolutely null and void, it is competent for this court, upon a proper showing, to issue a writ of injunction against him. Such writ would not run against him as receiver of the property, acting under the authority of the Federal Court, but as an individual, acting without authority. Therefore if this court should appoint a receiver to hold and preserve the property while the case is on appeal, I think it would be proper, if it became necessary, to issue a writ of injunction, or any other appropriate writ, to enable such receiver to secure and retain possession of the property.

In conclusion, it is not inappropriate to say that we have dealt with this delicate matter upon the assumption that the Honorable Judge of the Circuit Court of the United States, in dealing with it, acted upon no other motive than a high sense of official duty, and the matter has been dealt with in this court upon the same exalted plane. Nevertheless, being of the opinion that the Honorable Judge referred to exceeded his powers, and that his order appointing Mr. Dorchester receiver conferred no authority upon the latter, and that Mr. Dorchester's conduct in taking possession of the property for the purposes stated in the application under consideration, constitutes an invasion of the jurisdiction of this court, I believe it is our duty under the circumstances disclosed, to take all necessary and proper steps to prevent its continuance.