Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN QCI*U, 0.“ANN wlmuwameu Honorable Olin Culberson, Member Hailroad Cindesion of Texas Austin, Texas Dear Sir; thermlth, refloat the iollowi in ohroaologioal order. e8 granted R oortl- oricing tha oporatlon . of an lnterrutato rrier ssrrlor WIT orrtala hl&nye oporato wer the iollocrfrrg. n6trf.o aa Antonio over U.S. 81; llaboro over U.S. 772 0 and Orange over U.S. 901 and olaaswater over U.S. 80. 1936, H. H. Zadorr filed a *grand- ii the Interatato Commaroe a0mmim0n r CrrrisrAot. On AprU 10, 1936, on by due orber.apprwsd the sale and Owtifloata wore not zwtumed by Tallow Cab, exoept a8 later aotrb, while it& applfoation b&ore the Interstate Conuueror j Commlaslon ior the approval oi the purohaes f'ran Enders wa8 D@tiln&. Suberqueatly, oa JUly 3, 1941, the purohase was -, r ‘oaorable Olin ~Cultyrsoa, Xeder, Paga 2 approved and the Wgrandtather* rights of Yellow Ceb, suo- aasaor in fatsrest tii H. H. Enders, were oonflmad by the btorstats Cowsroe Con14ssfon and Ysllow Cab. vms given au- thority to operate laterateto wer the Texas highways above aaBed. On Daly 28, 1941, Yellou Cab made application to the RaUroed’Conmlsslon of Texas ror suthorlty to opirate interstate over these highways. On the 6th day of. Ootober, 194l, the Cdssion granted the application in part but tied the epplloatloa pertaining to the highways in ques- In this order the Commlssion,xiade the iollowing findings* “TH2 CCWISSIO~ I’UR?L’XZR FINDS from the avl- a-00 ana its reoords that a portion 0r the high- ways over *hiah the proposed tratila will mma is or auoh type ot oonstruatlon sad in suoh state of repalrs and maintenance as will pernit the addi- tional traf-Sfio sought to be plaaed thereon by the appliaant without unreasonably interfering with the use of the- sa~16 hfgbuays by the general publ.fo using the 84~ iOr ordinary highway purposes, but that .&her portions of ,saia highways are not ln suoh boaaitlon, partl+larly U. S. Rlghway 81 from Iort Z?orth to San Antonio, U. S. Nghway 77 rr0ln Callaa to., Mllsboro; 0. S. Highway 90 iron San Antonlo to Beaumont and U. 9. Eiighway $0 from Dal- las to Oladewter. That these hfghways tire re- striated hlghway~ under the ordera .of thie Comls- slon, and are already aongested by the trarrio moving over said highway at the prseent time and that these highprays are already subjeot to auoh use as wonld not, permit the uso sought to be nado by the appllaent without unreasonable intertaxtnoa 6th the use of such highway by the germral publia for highways purposes. Said highways hare heroto- fore been adjudged congested by the Comissfon and. heretorore rcstrloted from any edditional use by aomneraial rehialss far hire.- In its sroaptions and motion for rehearing to tlm order of Oatober 8, Yellow Cab asserts that fts applieRtiOB should be gr‘anted as a mtter of law for the following raa- sons, among other4 nut pertinent to your request: (1) That the operating rights Of B. H. &tl@TS laorwa la 1934 and aooording to the rindlags of the Iat4TSt4t4 ? x-able Olin Culberson, JLoaber, Paw 3 CozmsraoComalssion have been kept alive and hate axlsted sin04 1934 for uhlah reason the Railroad Commi44lon of Texas should have oonsldared the rights of Yellow Cab under its ap@liaatlon of July 28, 194l, as or 1934, and ahoula have reoogaleea the prlorlt of the right of Yellow Cab to operat- lng r$ghts over said hi @map in preiereuae to those who ha-d, ~aaqulred operatlng rights therewer subsequent to 1934; (2) T$at.the granting 0r operating rights over said hIghway to other oaniers subsequent to 1934, and the aeB#Bg of operatbq rights OYer suob highways to Yellow Cab, was dlsorlmInatory.and unreasonable; (3) That the Ootober 8th order br the T4xas Cm, ai44lon 14 void in that It repudiates end attempts to nullify the rindlags and order of the Interstate Comaeroe &sml44lon whorein it was found and held that TOllOrr Cab was entitled : to ~granarather* rights over the highways in questlou; (4) You also reolte that 7eUou Gab aontend that beoaose or the faot that for a short while they oontinu~d 'ulr operations wer suah hlghwaya wIthout let or hlndranoe .rom tho.Rallroad Comatleslon that thereby the taalt oonscat oi the Railroad Comlaslon of Texas was had for the qse .# these hlghwap ana that thereby inured to them so&i&oharaoter of rlgbt tat&or the mCrandSather~s alease'. They now assort that tha I. C. 0. having granted them a petit to do Snter- ". state business over HIghray 81 that tie Railroad ConmI4sion fs oatopped from aonilnlng their op4rations to thoee author- Iua In the Ender csrtlrloate to the rights of whloh they Eucoeeded.* You have reqtiested the opinion of this dep&tment Upon the authority of the Railroad Comlsslon to d&ny the . applloatIon of Yellow Cob for the reasons stated, and ali *as done, In the order or Ootober 8, 194l. ln,the light of the reoIte4 contentions mad8 by the applloant. hnd spol- fl6ally you have asked thle questlonr .. . : *Did the Yellow Cab Tramit Company aaquin grandfather's rlghta by reason oFtheIr operation without obstruotlon from the ConuPiasIon ior the abort time they pursued such operations before voluntarily abandoning them?* Ve hare oarsfully studled the oomplrte rile4 sub- aitted tith your letter ena hare fully intoram ouraelres xmrable Olia Culbgraon, &a&et, Page 4 upon the unusual and Involved faota surrounding the appli- eation of Yellow Cab, its proof before the Railroad Comb- aloa, and the faots regarding the prior granting of other permlta to other onrrlera under similar oirouaatanoea. Mlthout reviewing these verlow ooaalderatlona, auffiee to say that in our opLnion ?ellm Cab la posaeaaed of no oharaotar of mPandfather* rights in its lnatant ap- plloatlon before the Rsllroad Ooma.laaloxi of Texas. It la reooguiaed, of oourae, that for the preteo- tlon of the hlghuaya and the pub110 safety, the Eallroad Comniasloa of Texas has the power to withhold permiaaion ror luteratate operations upon the highwaya 0r Texas, not- dthatendlng any authority granted by the Interstate Corn- meroo Cormlaalou. While the granting of a oertlfloate Cc oonveuleaoe and neoeaalty by the Interstate CommerosCow alasion removes the question of oonwnienoe end neoeaalty from the State Comaiaalon, the condition and ability of the highways of the State to wlthstaud the additional trafiio involved remains wlth the State Comlsaloa. Southweatom Greyhouud Linee vs. Railroad Coamlaaion, et al, 99 S. Fp. (2) 263s W&on vs. Thompson, 123 3. W. (21 951; HoDonald va. Thoapaou, 305 u. s. 263. As an orlgiaa2~mutt~r,, therefore, the Railroad Coatmission of Taxa was not bound to grant the rpplloatloa or Yellow Cab over the highway8 in queatlon If the granting or the applloatlon would result in weaaonable lnterferenoo ulth the uae of the hlghwaya by the publla or would aubjeot the highways to exoaaaive burden. RI do not believe that this tundamental power or the Coaalaaiou la destroyed by the conalderetlons lziaullated upon in the instant applfoatlon. It is our opluioa that the conflnuatloa of *grand- father* rights.by the Interstate Comaeroe Cormiaalon unFIer the Federal Uotor Carrier Aot aa8 eubjeot to the power of the State Coualaalon to withhold permlaaloa to use the hlgh- ufiya of the State if the granting of pemlsalon uould result in unreasonable lnterfersnoe or exoenslve burden. It la our further opinion that *grandfatharm~righta finally aatabliehed before the Interstate Coma~srOeCommlaalon oauuot have the retroaotlve efiept insisted upoh by Yellow Honorable Olin Culberaoa, Member, Page 5 Cabs in other words; the Railroad Conmlaslon of Texas cannot determine the validity of aa applloatlon in 19U. by oondi- tlona exlatlng in 193k. bioreover, in our opinion, the propoclltlon la un- tenable that beoauss other appllaatloaa have been granted over the aame hlghwaya a later applloant nil1 be dlsorlmlmted against if he is not given ainilar operation rights) other- wiw the pclnt would never be reaohed at which the State Conmlasion could exercise its polloe powers ror the proteo- tion of the traveling pub110 end of the highNaya. The appliaation at bend, in our opinion, Is aimply one addreseed to the disoretlon of the Railroad Comlaslon, If a8 a matter of raot the Commlselon did not sot arbitrarily in denying the applioation over the hi&maps involved for the reaaolw stated, aamely, “that these hizghwayaare reatrlated highpntya under the orders of this Cozmlselon and are already oongeated by the traffio uovlng over said highways at the present tlzae and that these highways are already subject to auoh use as rculd’ not permit the use aought to be made by the applloant without unreasonable int,errerenoe with the use of. suoh highways by then general pub110 for highway purposesa, the notion of the ~C~lsaion is valid. The oonverse la like- niae true. Thea is a .fatt question to be ocnaldered by tha Coamlsalon and to be resolved by it in the light of the iaats existing unfier the applloetioa of Yellow Cab alla othezwlae properly mlthln then knowledge cf the Comlsslon. Your6 very truly