(concurring).
Section 9, Art. 6066a, VACS, fixes no time within which an applicant for a tender may appeal to the District Court of Travis County from a rejected application or inaction on such an application. Since this is a special statutory proceeding and not a common law action the provisions of the statute are exclusive. Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 372. The rule to apply then is “a reasonable time.” Midas Oil Co. v. Stanolind Oil & Gas Co., 142 Tex. 147, 179 S.W.2d 243, citing with approval Red Arrow Freight Lines v. Missouri Pacific Fr. Tr. Co., Tex.Civ.App., 166 S.W.2d 747, 749, Austin C.C.A. Writ Ref., where the court said: “The statute with regard to appeals from orders granting certificates to operate mot- or common carrier buses or trucks does not prescribe any time within which the appeal may be prosecuted. Therefore, in determining the question of unreasonable delay in prosecuting such an appeal the courts should take notice of the peculiar facts and circumstances of the particular case and of the nature of the 'proceeding involved.”
Appellee’s long delay in appealing from the order denying application for a tender is largely, if not wholly, sought to be excused on the ground that it was waiting for the Attorney General to file suit for confiscation of the oil.
The statute provides: “(b) When the Attorney General is advised from any source of the presence and -existence of unlawful oil and/or unlawful products it shall be-his duty to institute a suit in rem against such unlawful oil and/or unlawful product and against all persons owning, claiming or in possession thereof, such suit to be brought in the name of the State of Texas in any court of competent jurisdiction in Travis County or in the county in which such oil or product is located.” Sub. (b), Sec. 10, Art. 6066a, V.A.C.S.
The trial court showed great concern over the failure of the State to sue for confiscation of this oil and made certain findings and conclusions in his judgment, quoted below, with the tenor of which conclusions, except as hereinafter noted, I am in full accord:
“ * * * From time to time during this seven year period the defendants have been requested by plaintiff-to issue the tender to move the oil, and the Attorney General has been requested or invited by the Commission to institute confiscation proceedings to definitely and finally determine and adjudicate the matter of the status of the oil, and plaintiff has requested both the defendants and the Attorney General to institute confiscation proceedings for the oil and to intervene herein for that purpose. No such *299proceedings have been filed. Only the State, by its Attorney General, can institute such proceedings, because the State can not be sued without its consent. Meantime, plaintiff has been compelled to keep the oil in its expensive steel storage tank and to keep it insured, and has thus been deprived of the use of such storage tank for any other purpose. For these reasons the court finds and concludes that the failure of defendants to issue the tender to move the oil in question in commerce is tantamount to the confiscation of the oil and storage tank without due process of law, because the statute (Art. 6066a) makes it the imperative duty of the Railroad Commission, its members, agents and representatives upon- discovery of any illegally, produced oil to immediately report same to the Attorney General for confiscation and said statutes make it the duty of the Attorney General to immediately institute suit for the confiscation of the alleged illegal oil. * * *
“The court further finds that the action of the Railroad Commission of Texas and its attorney (the Attorney General of Texas) in refusing and continuing to refuse transportation tenders on the oil involved coupled with the inaction of the State and its attorney (the Attorney General of Texas) in instituting confiscation proceedings is in fact confiscating plaintiff’s property without due process of law, and the plain-, tiff is helpless and without adequate remedy at law. The court finds that the oil in question is a useful commodity, inherently harmless and cannot, either in law or in equity, be, in effect, confiscated in such a manner. * * *
“The court is of the opinion that if this oil was illegally produced, the Attorney General should' have immediately brought suit for confiscation, and in this connection the Court finds that the Attorney General has been apprised for several years of the Railroad Commission’s contention as to the alleged illegality of the oil in controversy, the grounds upon which it was alleged to be illegal oil by the Commission, yet, no suit has been filed by the State or the Attorney General in an effort to test its right of confiscation or to test the matter of the status of the oil.
“That if the foregoing stalerdate procedure is continued by these state officials charged with the dirties to act in the premises as above detailed, then not 'only will plaintiff’s oil be confiscated, but its steel storage tank in which the oil is stored.”
If appellee, as it contends, and as the trial court concluded, was powerless to precipitate action on the part of the Attorney General, then, it seems to me, the delay of more than seven years in taking an appeal would not be unreasonable. It could well be that appellee felt it had little or no chance of upsetting the order of the Commission, or its agent, on appeal because of the peculiar rules governing trials on such appeals, but that it had more than a fair chance of 'winning the confiscation suit under the more liberal rules applicable • as in other civil cases. Sub. (c), Sec. 10, Art. 6066a. Little could be gained by carrying on the appeal and at the same time trying the suit for confiscation. While perhaps appellee should have been convinced Before the lapse of seven years that the. Attorney General would not willingly file suit for confiscation, I would not hold, as a matter of law, that the delay was unreasonable, if, as argued, appellee had no remedy. I believe the remedy of mandamus was available. Art. 1735, V.A.C.S. This Article is constitutional. American Nat. Bank of Austin v. Sheppard, Tex.Civ.App., 175 S.W.2d 626, Austin C.C.A. Writ Ref. W.O.M.
The case of Lewright v. Bell, 94 Tex. 556, 63 S.W. 623, was decided in 1901, and held that mandamus would not lie to compel the Attorney General to file, a suit to forfeit the charter of a corporation. At that, time Art. 4861, Rev.Stat. of 1895, p. 7,. Acts 1881, the very antithesis of present. Art. 1735, provided: “No court of this state shall have power, authority or jurisdiction to issue the writ of mandamus, or injunction, or any other mandatory or compulsory writ or process against any of the officers of the executive departments of the government of this state, to order or compel the performance of any act or duty which, by the laws of this state, they or either of them are authorized to perform, whether such act or duty be judicial, ministerial or discretionary.”
*300At the same time Art. 946, Rev.Stat. of 1895, in the chapter defining the jurisdiction of the Supreme Court, provided that the court might issue the writ of mandamus against any officer of the state government except the Governor.
Article 1735 now reads, in part: “The Supreme Court only shall have power, authority or jurisdiction to issue the writ of mandamus * * * against any of the officers of the executive departments of the government of this state * * * to order or compel the performance of any act or duty which, by the laws of this state, they, or either of them, are authorized to perform, whether such act or duty be judicial, ministerial or discretionary.”
It will be observed that there has been a complete reversal of legislative policy in this regard since 1881.
If I am correct in believing that appel-lee- had recourse from the refusal of the State to bring confiscation proceedings, then I am of the opinion that the delay of appellee in prosecuting this appeal is unreasonable, it appearing that witnesses once available are now gone.
On the other hand, if I am incorrect in believing that appellee had such remedy then I would not hold such delay unreasonable. This because the State was in default in failing to obey the mandate of the statute to bring suit for confiscation of the ■oil. Refusal of tender to move the oil is only a step in aid of its confiscation. No property rights are altered and no oil is forfeited by the tender proceedings. These questions arise in the confiscation suit and until such suit is brought the matters might be held in abeyance indefinitely. The delay here has been more than seven years during which time the oil in question has been stored at considerable expense, and kept out of commerce. If the oil is illegal oil, it should be confiscated; if not, it should'be freed. The failure of the State to complete the statutory processes for dealing with this ¡oil borders on duress, and the State should not receive any benefit therefrom.
I do not agree that the failure of the State to institute confiscation proceedings furnishes any reason for the Railroad Commission to issue a tender for this oil.
Entertaining the views expressed in this opinion, I concur in the decision of the.majority.