Calvert v. Panhandle Eastern Pipe Line Co.

255 S.W.2d 535, 2 Oil & Gas Rep. 843, 1953 Tex. App. LEXIS 2178
CourtCourt of Appeals of Texas
DecidedFebruary 4, 1953
Docket10116-10118
StatusPublished
Cited by6 cases

This text of 255 S.W.2d 535 (Calvert v. Panhandle Eastern Pipe Line Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calvert v. Panhandle Eastern Pipe Line Co., 255 S.W.2d 535, 2 Oil & Gas Rep. 843, 1953 Tex. App. LEXIS 2178 (Tex. Ct. App. 1953).

Opinion

HUGHES, Justice.

These three causes in all of which Texas officials Robert S. Calvert, Comptroller of Public Accounts, Price -Daniel, Attorney General and Jesse James, State Treasurer, are appellants and the Panhandle Eastern Pipe Line Company is appellee in Cause No. 10,116, the Michigan-Wisconsin Pipé Line Company is appellee in -Cause No. 10,117 and the-Amarillo-Oil Company is appellee. *537 in Cause No. 10,118, 1 were consolidated for trial below, were consolidated in this Court for hearing and argument and will all be disposed of by this opinion.

These suits were all brought under and in compliance with Art. 7057b, Vernon’s Annotated Civil Statutes of Texas, authorizing and regulating institution of suits for the recovery of license and privilege taxes paid under protest.

Each appellee sought recovery of taxes 'paid under protest, such payments having been made in obedience to the provisions of Art. 7057f, Vernon’s Annotated Civil Statutes of Texas. 2

Trial below was non jury and resulted in judgments for appellees for recovery of the sums for which they sued.

Findings .of fact and conclusions of law were not requested of nor filed by the trial judge.

The single question presented for our decision is whether Article 7057f, a revenue statute, the pertinent portions of which are set out below, 3 as applied to the busi *538 ness activities of appellees, violates the commerce clause of the Constitution of the United States. 4 If so it is void, if not it is valid.

Each appellee is engaged in the business of transporting natural gas by pipe line. There is no dispute as to the manner in which their business activities were conducted. These matters were stipulated. Since Michigan-Wisconsin presents the strongest factual position favorable to ap-pellees we will fully describe it and its activities first.

Michigan-Wisconsin is a natural gas company as defined in the Federal Natural Gas Act, 15 U.S.C.A. § 717 et seq., and holds certificates of convenience and necessity issued by the Federal Power 'Commission. Such certificates authorize it to engage in interstate transportation and sale of natural gas. It has constructed a pipe line which originates at a point in Hansford County, Texas, and which terminates at various points in the States of Michigan and Wisconsin. At these points, and at other points in the States of Missouri and Iowa, it .sells natural gas to distribution companies which serve markets in those areas. It sells no gas in Texas.

Michigan-Wisconsin produces no gas in Texas or elsewhere. Rather, it supplies its markets by purchasing gas from Phillips Petroleum Company. Through a network of pipe lines, Phillips brings natural gas from the wells from which it is produced to its Sherman gasoline plant located in Hansford County, Texas. At this plant, certain liquefiable hydrocarbons are removed from the gas, and, at the outlet side of the plant, Phillips sells the gas to Michigan-Wisconsin.

Under contracts between Phillips and Michigan-Wisconsin, Phillips obligates itself to deliver to Michigan-Wisconsin all of the requirements for the latter’s pipe line, up to a maximum of 343 million cubic feet daily. To secure performance of this agreement, Phillips has dedicated all of the gas underlying certain lands described in the contracts, and, with minor exception, has agreed that it will sell no gas from such lands to anyone except Michigan-Wisconsin.

In these contracts, Phillips reserved the right to extract certain liquefiable hydrocarbons from the raw gas. This extraction is performed by Phillips with absorbers at its gasoline plant. When the gas leaves the absorbers it flows through pipes owned by Phillips for a distance of 300 yards to the outlet of the gasoline plant. When the gas emerges from the outlet, it flows directly into the pipe line of Michigan-Wisconsin, and it continues flowing through the Michigan-Wisconsin pipe line system until it reaches markets in other states. 5 This *539 pipe line is in the State of Texas for only 1.74 miles, the remainder being in other states. s

The movement of such gas from the producing wells to points of delivery to Michigan-Wisconsin at the outlet of the Phillips gasoline plant and thence through pipe lines to consumers in Michigan and Wisconsin is a steady and continuous flow. The taking of such gas at the outlet of the gasoline plant is accomplished through fa-ilities owned by Michigan-Wisconsin and used exclusively by it in the taking and transportation of such gas.

All of the gas is purchased by Michigan-Wisconsin for transportation to points outside Texas, and all of such gas is in fact so transported.

It was further stipulated by the parties:

“Natural gas in going through a gasoline plant or other process to separate oil, gasoline or other liquid hydrocarbons or to extract hydrogen sulphide •or carbon dioxide or any other element undergoes certain changes,* both in quality and quantity. Among the changes are these: The residue gas leaving the extraction or separating device is usually at a lower pressure, the temperature is sometimes higher, and the specific gravity of the gas is less than that of the natural gas which enters such plant. There are differences between the proportion of the methane content, the ethane content and the content of other hydrocarbons. Likewise, when the hydrogen sulphide •or carbon dioxide are extracted, there is a percentage variance in the constituents remaining in the gas. In addition to these changes in constituents, the volume of the residue gas is less thán the volume of the natural gas which enters the extraction plant due to the removal of some of the constituents of the natural gas.”

Except for minor variations Panhandle conducts its activities in the same manner as Michigan-Wisconsin. Panhandle loads its interstate pipe line with gas from the outlets of three gasoline plants, rather than with gas from only one-plant; it produces a portion of the gas which it takes at the outlet of one of such plants; and it makes-sales in Texas to three small customers, rather than sending all of its gas outside the State. 6

Amarillo produces no gas. It purchases gas produced in Texas and transports it by pipe lines in intrastate commerce only. 7

Regarding the natural gas business in Texas it was stipulated that:

“But for the Texas oil and gas con- . servation statutes, and the enforcement by the Railroad Commission of Texas, producers in the field could drill as many wells as they desired and could open their wells -at the rate of 100%. open flow and could" burn both the' sweet and sour gas for the production of carbón black, or they could extract the gasoline and other liquid hydrocarbons in a gasoline plant and flare the residue gas.

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Related

Amoco Production Co. v. New Mexico Taxation & Revenue Department
2003 NMCA 092 (New Mexico Court of Appeals, 2003)
Goodrich v. Morgan
291 S.W.2d 610 (Court of Appeals of Tennessee, 1956)
Amarillo Oil Co. v. Calvert
289 S.W.2d 746 (Texas Supreme Court, 1954)
Michigan-Wisconsin Pipe Line Co. v. Calvert
347 U.S. 157 (Supreme Court, 1954)

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255 S.W.2d 535, 2 Oil & Gas Rep. 843, 1953 Tex. App. LEXIS 2178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calvert-v-panhandle-eastern-pipe-line-co-texapp-1953.