Petition for Writ of Certiorari — Phoenix-El Paso Express, Inc. v. National Carloading Corp.

oe

ZS PPR 19 1944

CHATLES ELMORE CROPLEY

OLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1943

No. 909 AS

PHOENIX-EL PASO EXPRESS, INC.,

Petitioner,

vs.

NATIONAL CARLOADING CORPORATION.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF TEXAS AND BRIEF IN

SUPPORT THEREOF.

Rosert L. Houiumay,

Harotp L. Sims,

Counsel for Petitioner.

INDEX.

SuBsecT INDEX.

Page

Subject:

SP III hoo ky pea ddwi eae ean eee 1

ee eee eee Cen ee eee 1

Summary and short statement of the matter

Re ae Patient odin «A745 oleae es 1

This court has jurisdiction..................... 4

"Tie CRIMEA PONOIIOG, . «we ci eee vce 10

Reasons for allowance of the writ............... 11

Names and addresses of opposing counsel........ 11

Conclusion and signatures...................... 12

Brief in support of petition for certiorari............. 13

Caption and styi®..............,.. ACO EEN eg Pe 13

Opinions of the courts below.................... 13

Grounds of jurisdiction invoked................. 14

Concise statement of the case................... 15

Specification of assigned errors to be urged....... 17

Pummeary of armament. 5... 5 ok ke cas wee ss 18

pT Se he Mn EP OEE RET Ed or re ree 20

Conclusion and signatures...................... 32

TABLE OF CASES AND OTHER AUTHORITIES

Fifth Amendment to the Constitution of the United

NS racy cai) vo le Ge eke we 5,7,10

Part IV of the Interstate Commerce Act, (Public Law

No. 558, 77th Congress, 2d Session, approved May

BI oe a Cee oe vie HU eee 3,27

ee, BF I As PO TI oe co ee eae dass Ss

ee 0g ic, Ps OT NE 5 56k ise ences anes 19,25

- = Se Sot Sie eereserns on ror 16

ee a ae A eS iiss eed nek ae daw ewe 19

ee Ms tc Wn I ge gd see ae ee ews 19, 25,27

Sec. 419, Part IV, Interstate Commerce Act........ 3,4,5,6

Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 Sup. Ct.

ee Oe Pv aks Vea ee ee eye Cee 31

—1525

li INDEX

Page

Arkansas Nat. Gas. Co. v. Arkansas Rr. Comm., 261

U. S. 379, 43 Sup. Ct. 387, 67 L. Ed. 705.......... 32

Chemical Foundation v. DuPont, (C. C. A.) 39 Fed. (2d)

366, aff. 283 U.S. 152, 51 Sup. Ct. 403, 75 L. Ed. 919,

10, 28,29

Choate v. Trapp, 224 U.S. 665, 32 Sup. Ct. 565, 56 L.

SRB DAE Soe ah ee oe Penal 2p ene Re RR PP ict 10,29

ee oe ca We hw y gain CAR eh ek eke eat 10,29

Forbes Pioneer Boat Co. v. Bd. of Com., 258 U. S. 338,

2 ee ee ee 10,29

Haggar Co. v. Helvering, 308 U.S. 389, 60 Sup. Ci 337,

MM IEC Soe nk ec nee k d ches eee. 25

Hassett v. Welch, 303 U. 8. 303, 58 Sup. Ct. 559, 82 L.

DN GA aah kee og Oi eka Vase N Roe det ke 9,23

Herrick v. Boquillar Land & Cattle Co., 200 U. S. 97,

26 Sup. Ct. 192, 50 L. Ed. 300. ................... 10,29

In Re Twenty Per Cent. Cases, 87 U. 8S. 179, 20 Wall.

SE as SIs as Gv eae 0 eae ee Lea eee 9,23

Lynch v. United States, 292 U.S. 571, 54 Sup. Ct. 840,

Be I Seino hn apes ie ee 10,29

Nat'l. Carloading Corp. v. Phoenix-El Paso Express,

RU I goa nn bdo shee binlnne IE Ko ALA 13

New v. Denison Clay Co., (C. C. A.) 260 Fed. 70...... 24

Norman v. Baltimore & Ohio Rr. Co., 294 U. 8. 240,

SO Sup. Ce. 407, 79 L.. Bid. GOB... 2... ice ee 31

Pacific Mail Steamship Co. v. Joliffe, 69 U. S. 450,

eo SB ge er eens 2 me 10, 24,29

Panama R. Co. v. Johnson, 264 U.S. 375, 44 Sup. Ct.

en a I. co sn ga CG pea 4 Ow y ne Kn oe 32

Pritchard v. Norton, 106 U. 8. 124, 1 Sup. Ct. 102, 27

RI gr eke ches ONS eee oie Saeed ee a 10,28

Reynolds v. McArthur, 27 U.S. 417, 2 Pet. 417, 7 L. Ed.

ta dn 8 oii hie oie oo Aus wach Chen. Ae eee 9,23

Right of Way Oil Co. v. Gladys City Oil & Gas Co., 106

a I sab is wk aw Re enews 9,21

Royal Oak Drain Dist. v. Keefe, (C. C. A. 6th) 87 Fed.

SE MG a ued eee ee ses bec eae eae hae ee eee 23

INDEX lil

Page

Shwab v. Doyle, 258 U. 8. 529, 42 Sup. Ct. 391, 66 L.

IG ohio ier sh eae a 9 ,23

Union Pacific Ry. Co. v. Laramie Stockyards Co., 231

U. S. 190, 34 Sup. Ct. 101, 58 L. Ed. 179.......... 29

U.S. v. Burr, 159 U.S. 78, 15 Sup. Ct. 1002, 40 L. Ed.

MRS RRaTA Rn plgeaae plats Reb rig GAPUS a nae re ne 9 , 23,28

U.S. v. Heth, 3 Cranch 399, 2 L. Ed. 479............ 9,23

U.S. v. St. L. S. F. & T. Ry. Co., 270 U.S. 1, 46 Sup.

me & | © Seater ee ere 9,10,23

U. S. Fidelity & Guaranty Co. v. U. S., 209 U.S. 306,

28 Sup. Ct. S37, 52 L. Ed. O04.................... 9 ,23

House Report No. 1172, 77th Congress, First Session,

RII sie en ee ee gla nae yao ota 22

mas

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1943

No. 909

PHOENIX-EL PASO KXPRESS, INC.,

Petitioner,

US,

NATIONAL CARLOADING CORPORATION,

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF TEXAS.

To the Honorable, the Supreme Court of the United States:

Your petitioner, Phoenix-El Paso Express, Inc., respect-

fully presents this, its petition for certiorari to the Supreme

Court of the State of Texas, and to such end respectfully

shows :

Summary and Short Statement of the Matter Involved.

On October 28, 1941, petitioner, as plaintiff, recovered

judgment against respondent National Carloading Corpo-

ration for the sum of Nine Hundred Ninety-Nine Dollars

and Sixty-Kight Cents ($999.68) in the Forty-First Judicial

District Court of El Paso County, Texas (R. 26-33). This

ld

2

judgment was based upon the cause of action alleged by

petitioner in its second amended original petition, which

may be briefly summarized as follows:

Petitioner’s predecessor in interest and assignor, at all

times relevant, was a federal motor common carrier operat-

ing between El Paso, Texas, and Phoenix, Arizona, under

authority of a certificate of public convenience and neces-

sity issued by the Interstate Commerce Commission, Dur-

ing the period of July, 1937, to November, 1937, petitioner’s

predecessor and assignor carried nine freight shipments

from El Paso to Phoenix for respondent, and collected from

respondent freight charges therefor based upon a rate of

Forty-Five Cents ($.45) per hundred pounds. Said ship-

ments moved in interstate commerce under written bills of

lading or shipping orders issued by respondent. Said

freight rate of Forty-Five Cents per hundred pounds was

paid by respondent and received by petitioner’s predeces-

sor by virtue of a preexisting oral arrangement between

the parties. At all times relevant, petitioner’s predecessor

had established, published, and duly on file with the Inter-

state Commerce Commission its tariffs which provided that

the applicable rate between El Paso, Texas, and Phoenix,

Arizona, was Eighty-Five Cents ($.85) per hundred pounds.

The Forty-Five Cents per hundred pounds rate was paid

by respondent and received by petitioner under respond-

ent’s claim that it was a federal motor common carrier or

contract carrier, and thus was entitled to participate in

joint rates with petitioner’s predecessor, or was entitled

to pay petitioner’s predecessor only a division of the

through rate established by respondent. Petitioner fur-

ther alleged that on January 4, 1940, the Interstate Com-

merece Commission had found that respondent was a freight

forwarder and not a common carrier by motor vehicle, or

a contract carrier by motor vehicle, such decision being

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I ANTES DAL TT NINE ED CEO DERE ANE NN. O a ea ee eae

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3 ‘

rendered in Docket No. MC-40,639, reported in 21 MCC E

309. Petitioner further alleged that respondent was not E

entitled to share in so-called joint rates or concurrences é

with petitioner’s predecessor or other motor common car- }

riers because of the decision rendered May 7, 1940, by the ‘

Interstate Commerce Commission in the cause styled a

Tariffs of Forwarding Companies, Ex Parte, No. MC-31, 4

reported in 23 MCC 95. Petitioner alleged that it was .

therefore entitled to collect the difference between the 7

Forty-Five Cent rate paid by respondent as freight charges E

on the nine shipments, and the legal rate of Kighty-Five &

Cents per hundred pounds as required by its published and iM

filed tariffs (R. 1-11). Judgment was rendered in the trial if

court in petitioner’s favor and against respondent for such 4 :

differenee in the freight charges (R. 26-33).

ges

SPT ECS

Thereafter, in due time, upon its motion for new trial

being overruled, respondent gave notice of appeal to the

Court of Civil Appeals for the Kighth Supreme Judicial

District of Texas, sitting at El Paso (R. 40-41).

While the cause was pending on appeal, the Congress of

the United States enacted Part IV of the Interstate Com-

merce Act (Public Law No. 558, 77th Congress, Second

Session, app. May 16, 1942) (Act May 16, 1942, e. 318 § 1,

Stat. 284) (Title 49 U. S. C. Sees. 1001-1022).

The Court of Civii Appeals reversed petitioner’s judg-

ment on the sole ground that said statute, and in particular,

Section 419 of Part IV of the Interstate Commerce Act,

granted respondent immunity from all past liability and

thus abolished petitioner’s cause of action and judgment

based thereon (R. 41-50). The Court of Civil Appeals or-

| dered the cause remanded to the trial court with instrue-

| tions to dismiss petitioner’s suit (R. 50).

1

‘Thereafter, petitioner applied for writ of error from

the Supreme Court of Texas to the Court of Civil Appeals,

4

and its application was granted. The Supreme Court of

Texas affirmed the judgment of the Court of Civil Appeals

(R. 63-73). Ever since the passage of said Part IV of

the Interstate Commerce Act, petitioner in both Court of

Civil Appeals and in the Supreme Court of Texas has con-

tended and still contends that said Section 419 of Part IV

of the Interstate Commerce Act is not retroactive and not

applicable to petitioner’s cause of action and was not so

intended by the Congress, and that if Congress, in enact-

ine said statute, intended such effect, that such statute

would be unconstitutional in depriving petitioner of its

property without due process of law, in violation of the

Fifth Amendment to the Constitution of the United States.

This Honorable Court Has Jurisdiction.

Judgment in the trial court was rendered in favor of

petitioner and against respondent on October 28, 1941

(R. 26-33). Respondent gave notice of appeal to the Court

of Civil Appeals on December 30, 1941 (R. 40-41). Section

419 of Part IV of the Interstate Commerce Act was ap-

proved May 16, 1942. The Court of Civil Appeals rendered

its decision April 1, 1943, reversing the judgment of the

trial court and remanding the cause with instructions to

dismiss petitioner’s suit (R. 41-50). The order of the Court

of Civil Appeals based upon its decision was entered April

1, 1943 (R. 50).

As shown by its opinion, the Court of Civil Appeals re-

versed petitioner’s judgment on the sole ground that said

Section 419 of Part IV of the Interstate Commerce Act

eranted respondent immunity from all past liability for

freight shipments which occurred prior to the enactment of

said statute, even though such claimed freight charges had

been reduced to judgment prior to the passage of said

law.

5

Since the law had not been enacted at the time suit was

tried in the district court, petitioner could not there raise

the Federal questions here urged; but at the first opportu-

nity, it did raise said questions, that is to say, petitioner on

April 15, 1948, filed its motion for rehearing, in the

Court of Civil Appeals. In said motion for rehearing,

petitioner, by proper assignments of error, attacked the

holding of the Court of Civil Appeals that Section 419 of

Part IV of the Interstate Commerce Act abolished peti-

tioner’s cause of action and judgment based thereon by

granting immunity from liability for past freight charges

due by respondent.

Petitioner expressly charged the Court of Civil Appeals

with error in holding (1). that said statute bars recovery

by petitioner against respondent; (2). that said Act of

Congress was intended to be, or was in fact, applicable to

petitioner’s cause of action; (3). that said statute ex-

tended to and was applicable to civil liability rather than

being limited to criminal liability or punishment; (4). that

said statute granted respondent immunity from civil liabil-

ity against petitioner’s cause of action; (5). that said See-

tion 419 of Part IV of the Interstate Commerce Act was

constitutional and not violative of the ‘*due process clause’’

of the Fifth Amendment to the Constitution of the United

States, insofar as said Act of Congress was intended to

be, or was in fact, applicable to petitioner’s cause of action:

and (6). petitioner charged that the holding of the Court

of Civil Appeals deprived petitioner of its property with

out due process of law, in violation of the Fifth Amend.

ment to the Constitution of the United States (R. 51-52).

On April 22, 1948, the Court of Civil Appeals entered

its order to the effect that petitioner’s motion for rehearing

was duly considered but overruled (R.55). In connee

tion with its order overruling petitioner’s motion for re-

hearing, the Court of Civil Appeals wrote a short addi-

SASHA Tick —

tional opinion holding that where Congress has created a

cause of action, it may be taken away at any time (R. 59).

In due time, on May 21, 1943, petitioner filed its appli-

cation for writ of error from the Supreme Court of Texas

to the Court of Civil Appeals (R. 56-62), and such applica-

tion was granted by the Supreme Court of Texas by order

entered July 21, 1943 (R. 62).

In its application for writ of error, petitioner specifically

raised the Federal questions here urged by six assignments

of error, which may be summarized as follows: The Court

of Civil Appests erred in reversing petitioner’s judgment

and ordering ‘lie cause dismissed (1). by holding that

Section 419 of Part IV of the Interstate Commerce Act

eranted respondent immunity from civil liability; (2). by

holding that said statute was applicable to petitioner’s .

‘ause of action; (3). by holding that said statute bars

any recovery by petitioner against respondent; (4). by

holding that said Section 419 of Part IV of the Interstate

Commerce Act was not limited to criminal liability or pun-

ishment; (5). by holding that Section 419 of Part IV of the

Interstate Commerce Act was constitutional and not re-

pugnant to the ‘‘due process clause’’ of the Fifth Amend-

ment to the Constitution of the United States insofar as

said statute was intended to be, or was in fact, applicable

to petitioner’s cause of action; and (6). that the opinion

of the Court of Civil Appeals and judgment based thereon,

reversing petitioner’s judgment, was a deprivation of

petitioner’s property without due process of law, in viola-

tion ef the Fifth Amendment to the Constitution of the

United States (R. 56-58).

On December 15, 1943, the Supreme Court of Texas af-

firmed the judgment of the Court of Civil Appeals by order

entered that day (R. 74-75) in accordance with the written

opinion of the Supreme Court of Texas (R. 63-73). As

shown by its opinion, the Supreme Court of Texas affirmed

6

PRIETO IH LTD

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7

the judgment of the Court of Civil Appeals on the sole

proposition that said Section 419 of Part IV of the Inter-

state Commerce Act abolished petitioner’s cause of action

and judgment based thereon, and the Court expressly held

that said statute did not violate the ‘‘due process clause’’

of the Fifth Amendment to the Constitution of the United

States (R. 63-73).

On December 28, 1943, petitioner duly filed its motion for

rehearing in the Supreme Court of Texas. In its motion for

rehearing, petitioner properly raised the Federal questions

urged here by proper assignments of error, which are sum-

marized as follows: The Supreme Court of Texas erred (1)

in holding that Section 419 of Part IV of the Interstate

Commerce Act bars any recovery by petitioner against re-

spondent; (2) that said statute was intended to be appli-

cable to petitioner’s cause of action which accrued long prior

to the passage of said act; (3) in failing to hold that said

statute was limited to criminal liability or punishment, not

extending to civil liability; (4) in holding that said statute

eranted respondent immunity from civil liability against

petitioner’s cause of action; (5) in holding that said statute

was constitutional and not violative of the ‘‘due process

clause”’ of the Fifth Amendment to the Constitution of the

United States insofar as said statute was intended to be,

or was in fact, applicable to petitioner’s cause of a¢tion; (6)

in holding that the judgment of the Court of Civil Appeals

should be affirmed upon the sole ground that said Section

419 of Part IV of the Interstate Commerce Act bars any re-

covery by petitioner, such holding depriving petitioner of

its property without due process of law, in violation of the

Fifth Amendment to the Constitution of the United States;

(7) in holding that said Section 419 of Part IV of the Inter-

state Commerce Act was intended to have a retroactive

effect, thereby abolishing petitioner’s cause of action; (8)

in holding that petitioner’s cause of action was a mere statu-

8

tory right which could be repealed, and deprive petitioner

of its cause of action (R. 75-77).

On January 19, 1944, the Supreme Court of Texas en-

tered its order overruling petitioner’s motion for rehearing,

such order reciting that petitioner’s motion was overruled

after due consideration of same (R. 77).

Petitioner here seeks review of the final judgment of the

Supreme Court of Texas entered January 19, 1944, over-

ruling petitioner’s motion for rehearing (R. 77). The Su-

preme Court of Texas is the highest court of the State in

which a decision could be had. Art. V, Sections 1 and 3,

Constitution of Texas; Art. 1728, Revised Civil Statutes of

Texas, 1925. This petition for certiorari is filed within

three months of January 19, 1944, and there is presented

herewith a certified copy of the transcript of the record

and proceedings in the Supreme Court of Texas.

The Supreme Court of the United States, in view of the

foregoing, has jurisdiction to issue the writ of certiorari

to the Supreme Court of Texas by virtue of Section 237 (b)

of the Judicial Code, as amended (28 U.S. C. Section 344

(b)). Petitioner having drawn in question the validity of

Section 419 of Part IV of the Interstate Commerce Act, and

the Supreme Court of Texas having sustained respondent’s

claimed right, privilege, and immunity under said statute,

—Section 419 of Part IV of the Interstate Commerce Act,

—this Honorable Court should issue the writ because the

Federal questions presented are substantial.

Said Section 419 of Part IV of the Interstate Commerce

Act (Public Law No. 558, 77th Congress, Second Session,

app. May 16, 1942) (Act May 16, 1942, ¢. 318 § 1, Stat. 284)

(Tit. 49 U.S. C. Sees. 1001-1022) provides:

‘“¢*Trapmiry ror Past Acts AND OMISSIONS.

‘No person shall be subject to any punishment or

liability under the provisions of this act on account of

9

any act done or omitted to be done prior to the effective

date of this Part, in connection with the establishment,

charging, collection, receipt or payment of rates of

freight forwarders or joint rates or divisions between

freight forwarders and common carriers by motor ve-

hicle subject to this Act.’’

As codified, said section appears in 49 U. 8. C. See. 1019

as follows:

‘*LraBiLity ror Past Acts AND OMISSIONS.

‘‘No person shall be subject to any punishment or

liability under the provisions of this chapter and chap-

ters 1, 8, and 12 of this title on account of any act done

or omitted to be done, prior to the effective date of this

chapter, in connection with the establishment, charging,

collection, receipt, or payment of rates of freight for-

warders, or joint rates or divisions between freight for-

warders and common earriers by motor vehicle, subject

to this chapter and chapters 1, 8, and 12 of this title.”’

Said statute was never meant by Congress to be appli-

cable to petitioner’s cause of action, and its application

should be limited to past criminal liability and punishment,

under familiar rules of statutory construction. Right of

Way Oil Co. vs. Gladys City Oil and Gas Co., 106 Tex. 94,

157 S. W. 737.

The Congress never intended said statute to have a retro-

active application, which would abolish petitioner’s cause

of action: U.S. vs. St. L. 8S. F.& T. Ry. Co., 270 U.S. 1, 46

S. Ct. 182, 70 L. Ed. 435; Reynolds vs. McArthur, 27 US.

417, 2 Pt. 417, 7 L. Ed. 470; Hassett vs. Welch, 303 U.S. 303,

58 8. Ct. 559, 82 L. Ed. 858; U. S. Fidelity & Guaranty vs.

U. S., 209 U. S. 306, 28 S. Ct. 537, 52 L. Ed. 804; In Re

Twenty Per Cent Cases, 87 U.S. 179, 20 Wall. 179, 22 L. Ed.

339; U. S. vs. Heth, 3 Cranch 399, 2 L. Ed. 479; U. S. vs.

Burr, 159 U. S. 78, 15 S. Ct. 1002, 40 L. Ed. 82; Shwab vs.

Doyle, 258 U. S. 529, 42 8. Ct. 391, 66 L. Ed. 747.

. rae “ a la ‘ —

10

The construction placed upon said Section 419 of Part IV

of the Interstate Commerce Act by the State Appellate

Courts had the effect of abolishing petitioner’s cause of

action and judgment based thereon, and thus constituted a

deprivation of petitioner’s property without due process of

law, in violation of the Fifth Amendment to the Constitution

of the United States. U. S. v. St. L. S. F. & T. Ry. Co., 270

U.S. 1, 46 S. Ct. 182, 70 L. Ed. 485; Herrick v. Boquillas

Land & Cattle Co., 200 U. 8. 97, 26S. Ct. 192, 50 L. Hd. 389;

© - Pacific Mail Steamship Co., v. Joliffe, 69 U.S. 450, 2 Wall.

450, 17 L. Ed. 805; Chemical Foundation v. Du Pont (C. C.

A.) 39 F. (2d) 366, affirmed 283 U. S. 152, 51'S. Ct. 408, 75

L. Ed. 919; Pritchard v. Norton, 106 U. 8. 124, 1S. Ct. 102,

27 L. Ed. 104; Lynch v. U. S., 292 U.S. 571; 54 S. Ct. 840,

78 L. Ed. 1434; Ettor v. Tacoma, 228 U.S. 148, 33 8. Ct. 428,

57 L. Ed. 773; Forbes Pioneer Boat Co. v. Board of Com-

missioners, 258 U. S. 338, 42 S. Ct. 325, 66 L. Ed. 647;

Choate v. Trapp, 224 U.S. 665, 32 8. Ct. 565, 56 L. Md. 941.

The foregoing authorities clearly demonstrate that the

Federal questions here urged are substantial, and this Hon-

orable Court has never passed upon them. It is respectfuily

submitted that the Court has jurisdiction to issue the writ

and correct the judgment of the State Court.

The Questions Presented.

The ultimate question presented for review is whether or

not said Section 419 of Part IV of the Interstate Commerce

Act bars petitioner any recovery against respondent and

has the effect of granting respondent immunity from lia-

bility for all freight charges incurred prior to the passage

of said statute. The answer to this ultimate question de-

pends upon the answers to the following three component

questions: 1. Did Congress intend said Section 419 of Part

IV of the Interstate Commerce Act to apply to civil actions

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11

as well as to criminal liability? 2. Did Congress intend

said statute to have a retroactive effect as to accrued civil

causes of action? 3. If said statute should be applied to

petitioner’s cause of action, is said statute constitutional

and not repugnant to the ‘‘due process clause”’ of the Fifth

Amendment to the Constitution of the United States?

Reasons for Allowance of the Writ.

The Supreme Court of Texas decided the foregoing sub-

stantial Federal questions which have not been determined

by the Supreme Court of the United States, and decided

said questions in a way probably not in accord with the

applicable decisions of the Supreme Court for the United

States.

Opposing Counsel.

Counsel for respondents are Mr. Thornton Hardie, 710

Bassett Tower, El Paso, Texas, Mr. P. J. Coughlin of New

York City, and Mr. Robert FE. Quirk of Washington, D. C.,

and they have been duly served with copies of this Petition,

supporting brief, and the record herein.

Wherefore, for the reasons set forth herein, as well as in

the supporting brief annexed hereto, petitioner respectfully

prays this Honorable Court to issue its writ of certiorari to

the Supreme Court of Texas, commanding said State Court

to send up forthwith a full and complete transcript of the

record, that all proceedings be certified to this Court, and

that this cause be reviewed and the errors of the Supreme

Court of Texas be corrected, as provided by law; that upon

hearing by this Honorable Court, the judgment of the Su-

preme Court of Texas be reversed, and that the judgment

in petitioner’s favor, rendered in the Forty-First Judicial

District Court of El Paso County, Texas, be affirmed, and

BAYADA I AES ENG LCA DARGA SS NBN TNC A I GLE EME CP WT AE RIOT Ei NG RIED OA ll

12

that petitioner recover its interest thereon and all costs and

for such further relief to which petitioner may be entitled to

receive.

Rosert L, sfoiiipay,

El Paso, Texas.

Harowp L. Srus,

El Paso, Texas.

Attorneys for Petitioner.

Tue Strate or Texas,

County of El Paso:

Robert L. Holliday, being duly sworn, says that he is of

counsel for Phoenix-El Paso Express, Inc., petitioner in the

foregoing petition for certiorari, that he prepared the fore-

going petition, and that the allegations therein contained

are true and that there is just cause for same as he verily

believes.

Rosert L. Houiumay.

Subscribed and sworn to before me this 8th day of April,

1944.

STEPHEN Brown,

[ SEAL. | Notary Public,

El Paso County, Texas.

A

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