Appellees Oilfield Haulers Association, Inc., et al state, 'The only appellant is Lone *Page 877 Star Steel Company; the absence of any participation in the appeal by the Railroad Commission of Texas is subject to only one construction — the Railroad Commission of Texas is not in sympathy or accord with the contentions made by Lone Star Steel Company and has agreed to and adopted the position of Appellees.'
Railroad appellees say, 'The Court will please observe that the style given by the Court in its Per Curiam opinion indicates that the Railroad Commission is a party appellant, which is not the case, the appellant being Lone Star Steel Company. * * *'
The Railroad Commission of Texas is an appellant in this Court. It, through the Attorney General, filed notice of appeal from the judgment entered below; made an affidavit to the effect that under the law it was not required to post security to appeal; it made a praecipe upon the Clerk of the trial court for the transcript which was filed in this Court.
The Railroad Commission has not moved to dismiss its appeal, and this Court has not dismissed it.
Art. 4395, V.T.C.S. provides, 'The Attorney General shall prosecute and defend all actions in the Supreme Court or in the Courts of Civil Appeals in which the State may be interested.'
Appellees Haulers say that, 'This Court, by its Per Curiam opinion, has assumed that one private litigant, Lone Star Seel Company, may usurp the function of the Attorney General and represent the Railroad Commission in the appellate courts of this State * * *' despite such statute.
It seems to me that it is Haulers who are attempting to speak for the Attorney General.
If the Attorney General had complied with the statute and represented the Railroad Commission in this Court in this case all doubt about his position and that of the Commission would be dispelled.
Oilfield Haulers say in their motion that they 'find it difficult to believe that this Court or any member thereof gave to the case at bar the consideration which it merited,' and they ask us to give it 'genuine consideration.'
The unorthodox judgment of the trial court is without a semblance of authority to sustain it, and appellees do not advance any tenable theory upon which it can be upheld.
Haulers say, 'The decision which Lone Star Steel Company seeks would not be just or equitable to any party. It would, however, provide an economic windfall for a major pipe shipper such as Lone Star Steel.'
Yet, Railroads say, 'The true parties in interest in this type of litigation are the concerned carriers and the enforcement agent, the Commission. Those who merely use a rate have no justiciable interest in the controversy.' (Italics mine.)
I quote from the intervention of Lone Star Steel:
*Page 878"Lone Star Steel Company was the complainant in the proceeding here under attack and instituted the proceedings out of which the order of December 18, 1962, challenged by Oil Field Haulers Association, was entered. The order here under attack prescribed a reasonable, nondiscriminatory basis of freight rates for the movement of products manufactured by Lone Star Steel Company. The establishment and maintenance of such a scale of freight rates is vital to the continued existence of Lone Star Steel Company. Without such freight rates the ability of Lone Star Steel Company to compete for the sale of its products as against manufacturers located in other states is so substantially curtailed that, in many instances, Lone Star Steel Company is virtually eliminated as a competitor.
By reason of the foregoing, Lone Star Steel Company, which has an investment
of millions of dollars in its plant and facilities, has a direct and vital interest in the prescription and maintenance of the rates established by the Railroad Commission. As a member of the shipping public it has a right, under the law, to the prescription and maintenance of reasonable and nondiscriminatory freight rates. Thus it has a property interest and rights which need to be protected. These rights are being challenged in this proceeding by virtue of the action of the plaintiff herein. These property rights and interest differ from that of the public in general because Lone Star Steel Company is the only Texas manufacturer of pipe of the kind and type which it manufactures, its continued existence depends upon the establishment and maintenance of equitable freight rates and in the absence of such equitable freight rates its business existence is imperiled.'
Lone Star should be given an opportunity to prove these allegations, which, if sustained, would clearly show its interest in and right to defend the order of the Commission attacked herein.
Railroads are also intervenors in this cause, and motions to strike their intervention were overruled.
No motion to strike intervention of Lone Star was made.
The general rule for intervening is stated in 44 Tex.Jur.2d, Parties, Sec. 40 to be, 'Thus, anyone who has an interest in the subject matter of litigation pending between other parties may intervene for the purpose of asserting and protecting that interest.'
It seems to me especially appropriate that Lone Star be permitted to intervenue in this cause where its interests as a major shipper in a rate order of the Commission are asserted, and are conceded by Haulers, since the Railroad Commission has shown no indication to defend its own order, thus casting the whole burden on the shipper.
It would be preposterous to me to hold that only the railroads, who collect the freight, should be permitted to intervene in this suit and that shippers, such as Lone Star, who pay the freight, should not be allowed to intervene.
I sympathize with the plight of appellees who say that after this long delay they will have difficulty in trying this case, but I cannot let sympathy warp my judgment of the law. I do not find any support to the argument that in some mysterious way appellants have prevented a trial of this case. The trial court is responsible for seeing that litigants have a trial if any party insists. If he fails to provide a trial this Court and the Supreme Court can compel it. There is no showing as to any of this.
Appellees appealed from the order of the Commission and it was their statutory duty to comply with the statutes regulating such appeal and its prosecution and by no legerdemain may this burden be shifted to appellants.
The only question of any substance presented by this appeal is the authority vel non of the trial court to remand this case to the Commission. Our decision in Gerst, Savings and Loan Commissioner et al. v. Jefferson County Savings and Loan Association, 390 S.W.2d 318, Tex.Civ.App.-Austin, writ ref. n.r.e. (1965) on this point was based on a statute. The necessity for this statute in cases such as Gerst enforces our decision that without it the authority does not exist.
In Missouri-Kansas T.R. Co. of Texas v. Railroad Commission, Tex .Civ.App., 3 S.W.2d 489 (1928) affirmed and opinion approved Producers' Refining Co. v. Missouri K. T.R. Co. of Texas, 13 S.W.2d 679, Chief Justice McClendon for this Court in discussing the rate making authority of the Commission stated:
*Page 879"And, while ample express powers are conferred upon the commission as a legislative rate-making body, we find nothing in the act which confers upon it the judicial or quasi judicial power to reopen a rate it has fixed, and determine its unreasonableness,
unjustness, or discriminatory effect in so far as it has operated upon transactions that have already taken place. All of the statutory provisions in regard to rate-making powers and duties of the commission appear to be legislative in character and prospective in operation.'
In Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 (1941), a rate case, the Court said:
"The rate order here attacked is certainly not invalid on its face . If any invalidity or defect exists therein, an examination of the order alone would not disclose that fact. In order to disclose any defect or invalidity which may exist in this order, it will be necessary to go behind the same and introduce evidence to prove that fact. So long as the order stands, and is in force, it is the duty of the Gas Company to obey it. It follows that Article 6059 and allied statutes prescribe the exclusive statutory judicial remedy for all persons and parties who wish to attack this order. Alpha Pet. Co. v. Terrell et al., 122 Tex. 257, 59 S.W.2d 364, 59 S.W.2d 372.'
I also quote from Houston Chamber of Commerce v. Railroad Commission, 19 S.W.2d 583, aff. 124 Tex. 375, 78 S.W.2d 591 (1929):
"In rate making, the functions of the commission are legislative in character and its orders prospective in operation. The commission cannot set aside, annul, or grant relief from the effect of any rate it may make. It may modify or repeal, and so extend relief prospectively; but, in so far as its orders already made are concerned, the courts alone can give relief. See Missouri-Kansas T. Ry. v. R.R.Com. (Tex.Civ.App.) 3 S.W.2d 489. '
No conceivable purpose could be served in remanding this case to the Railroad Commission.
Whether the Commission could have entered or could now enter a new rate order displacing the order here involved pending appeal of this case under its continuing power to supervise rate structure and make changes is not before us. See, however, Producers' Refining Co. v. M.K. T.R. Co., 13 S.W.2d 679, Tex.Com. of Appeals (1929), Railroad Commission of Texas v. Galveston Chamber of Commerce, 115 S.W. 94, Tex.Civ.App. Austin, writ denied (1908), Texas O.R.R. Co. v. Railroad Comm., 155 Tex. 323, 286 S.W.2d 112 (1955), Sec. 6, Art. 6448, V.T.C.S.
I am thoroughly satisfied that the rate order in this case cannot be changed so as to affect rights which may have accrued under it except by appeal as provided by statute.
I concur in the overruling of appellees' motions for rehearing.*