                  C




            THE       ATTORNEY             GENERAL
                           OFTE~A~




hon. James E. Kilday                 Opinion No. Q-4853
Director                             Re: Whether the Railroad Commits-
Motor Transportation                 sion may grant authority to use
Division                             highways of the State of Texas as
Rarlroad Commission of               a common carrier in interstate com-
Texas                                merce to a person who has been
Austin 9 Texas                       issued a certificate of convenience
                                     and necessity by the Interstate
                                     Commerce Commission authorizing
                                     such operation when such person
                                     holds an intrastate specialized
                                     motor carrier certificate or an
                                     intrastate contract carrier permit
Dear Sir:                            under Article qllb, R.C.S,
          we are in receipt of your letter of October 26, 1942,
in which you state in part:
         "There has been presented to us9 by an application
    duly filed, the question of whether sections 5a(b) and
    6bb of Article qllb, VernonIs Revised Texas Civil Stat'-
    utes prohibiting dual operation as common carrier motor
    carr1er and specialized motor carrier or contract carrier
    apply to an application to us for authority to use high-
    ways of the State of Texas in transporting interstate com-
    merce in accordance with authority granted the applicant
    by the Interstate Commerce Commissioner under Part II of
    the 1ntersta"e Canmerce Act, as amended, or whether in
    passing upon such application we may consider only the
    ability of the applicant ,tomeet police requirements for
    the protection of the public on the highways and whether
    the roads are of such type of construction and in such
    state of repair and are subject to such use that the ap-
    plicant may use them without interfering with use of such
    roads by the general public for highway purposes.
         "The applicant before us holds an intrastate spe-
    cialized motor carrier certificate and an intrastate con-
    tract carrier permit issued by us9 and has recently been
    issued a certificate of convenience and necessity by the
    Interstate Commerce Commission authorizing transportation
    of general commodities as a common carrier in interstate
    commerce over roads within a prescribed area in Texas.
    0 0 0
Hon. James,E. Kilday, page 2   (C-4&33)


          ”e   0   0

          "In light of the above, we submit this question to '
     you : May we grant authority to use highways of the State
     of Texas as a common carrier in interstate commerce to a
     person who has been issued a certificate of,convenience
     and necessity by the Interstate Commerce Commission author-
     izing such operation when such person holds an intrastate
     specialized motor carrier certificate or an intrastate
     contract carrier permit under Article qllb?"
          As this department construes Article qllb, Vernon's
Annotated Civil Statutes of Texas, being House Bill No. 3359
Chapter 277, page 480, Acts, 42nd Legislature, in opinion No.
o-1518, a carrier may not operate both as a common carrier and
a specialized motor carrier or a contract carrier, The question
here presented is whether a like prohibition obtains where the
applicant has a contract carrier permit and a specialized motor
carrier permit for intrastate commerce and subsequently obtains
from the Interstate Commerce Commission a common carrier certi-
ficate.
          As a prerequisite to engaging in interstate commerce
a state may not require of a carrier that he obtain from the
state a certificate based upon the public need and the useful-
ness of his proposed business but can make
                                       _. the
                                            ." granting
                                                   ^  ^.of its
                                                             ^
authorization contingent only upon consideration OS sasety OS
traffic and of the highways and compensation for the use of its
roads. Buck v. Kuykendall, 267 U.S. 307.   And where a carrier
has secured an interstate commerce certificate to operate
wholly in interstate commerce the State Commission is required
to grant such carrier a certificate upon proper application and
proof that he will not endanger the State's highways and the
traveling          Galveston Truck Line Corporation v. Allen
          Gp%firzled    by memorandum opinion in 289 U.S. 708;
&F$%'Trueiock,     140 S.W. (2d) 167.
          The State cannot regulate the capacity in which a
carrier serves. If the refusal by the Commission to issue a
certificate or permit is based, not upon consideration of the
traffic safety or protection to the highways, "but only on the
commerce itself and the business of those who transuort it119
refusal is unwarranted and the carrier may have an injunction
against being interfered with in carrying interstate commerce.
Galveston Truck Line Corporation v. Allen, supra. In Thompson
v. McDonald, (1928; C.C.A. %h) 95 F.(2d) 937s affirmed in 305
U.S. 263, reheaTing denied, 305 U.S. 676, we find the same
thought expressed in these words:
          "The Interstate Commerce Commission has jurisdic-
     tion over the commercial considerations appertaining to
               -




Hon, James E. Kilday, page 3   CO-4853 1


     the interstate trucking business, but the preservation
     and safety of the roads themselves has been left to the
     state commissfon.11
And in Texport Carrier Corporation v. Smith, 8 F. Supp. 28,
32, the court used this terminology:
            "It is only when the Commission has undertaken to
     exercise control, not over the safety of the highways
     and of the traveling public, but over the commerce itself
     that its orders refusing permits to interstate carriers
     are inoperatfveOVw
The refusal to grant a permit to an interstate commerce carrier
on the grounds that he had an intrastate contract,carrier's
permit would be a refusal based no% upon consideration of safe-
ty of the highways but upon opposition to the carrierIs rela-
tion with the shipper, to his method of obtaining compensation.
This would be unjustifiable obstruction of fnters'tatecommerce,
            The U, S, Supreme Court held the Michigan Act un-
constitutional that declared that all carriers for hire on its
highways should be common carriers; such sta,tuteconstituted
a burden on interstate commerce, where it sough,%to compel a
contract carrier to act as a common carrier, Michigan Rublie
Utilities Commission vO Duke, 266 U,S, 570, We beleve that
the doctrine of this case is broad enough to de,-:Lare
                                                     the 'tin-.
constitutionality of any attempt by a state to prohibit inter-
state commerce on the grounds of the status of t:hecarriei-,
w'hethercommon, contra@% or specialized motor carrier.
            The language of the Texas statute is sufflcient,ly
broad to warrant an interpretation that the Railroad Commls-
sion might refuse a permit under the conditions here under
consideration, However, the general rule of constitu,%iona'l
construction ought to he applied, viz,:
             '"Wherea statute is fairly susceptible of two i:.n-
     terpretations, one rendering it constitutional and one
     not that construction will ordinarily be adopted which
     wil d uphold its consti,tutionalfty. The presumption is
     that the legislature intended to keep within the limi,ts
     of both the Federal and State Constitutions, and to re-
     strict the operation of its enactments to cases where
     they will have effect consistently therewith." Haselton
     v. Interstate State Lines, _     N,H, PB     I.33 At. 451,
     47 A,L.R, 218; Grenada County v. Hrogden, 112 U.S. 261,
             This principle of construction has been applied to
state statutes governing the operation of motor vehicles whose
Hon. James E. Kilday, page 4   (O-4853)

terms were sufficiently general to include interstate as well
as intrastate carriers. Commonwealth v. O'Neil, 233 Mass.
535p 124 N.E. 482; Haselton v. Interstate Stage Lines, supra.
          In construing our Article glib, R.C.S., the Texas
courts have limited its application to intrastate commerce.
The Texas Supreme Court In Southwestern Greyhound Lines v.
Railroad Commission, 128 Tex. 560, 99 S.W. (26) 263, 109 A.L.R.
1124, said:
          “An analysis of the act merely shows that It was the
     purpose of Congress, In enacting this law, to delegate
     to the Interstate Commerce Commission the exclusive au-
     thority to pass upon the application of a motor carrier
     engaged exclusively in interstate commerce on the high-
     ways for a certificate of public convenience and neces-
     sity. Such construction of the law does not deprive the
     state from protecting Its highways and the public safety
     by reasonable and uniform regulations. and exacting rea-
     sonable compensation for the use of such highways. 0 D .
     Congress having assumed jurisdiction over this class of
     legislation, such control is exclusive, and such act of
     Congress superseded state legislation.”

          In Smith v. Coleman, 127 S.W. (2d) 928, 9329 the
Court of Civil Appeals at Waco said:
          "The Federal Motor Carrier Act operates to limit
     such provisions of the Te,;asMotor rarriers Law as con-
     fers upon the Railroad Commission the power to determine
     whether there exists a public convenience and necessity
     for the proposed service founded upon the adequacy of
     the existing transportation facilities, etc,, to carriers
     of property moving intrastate. State ex rel. Board of
     Com'rs va Martin, 210 Iowa 207, 230 N.W. $0; Byck v0
     Kuykendall, 267 U.S. 3079 45 S.Ct. 324, 69 L.Ed. 6239 38
     A.L.R. 286; Bush & Sons co. V. Maloy, 267 U.S. 317, 45
     Sect. 326, 69 L.Ed. 627. But it does not deprive the
     Railroad Commission of its jurisdiction and power to de-
     termine whether the safety of the traveling public and
     the preservation of the state's property in the hfghways
     will permit any additional burdens of commerce upon and
     over the highways irrespective of whether such burdens
     result from interstate or intrastate commerce thereon,
     South Carolina State Highway Department v0 Barnwell Bras,,
     Inc., 303 U.S. 177, 58 S,Ct. 5109 82 L.Ed, 734; Id. 303
     U.S. 625, 58 S.Ct. 510; Kelly v0 State ofWashington,
     302 U.S. 1, pars. 5, 7 and 9, 58 S.Ct. 879 82 L.Ed. 3;
     Thompson v. McDdnald, 5 Cfr., 95 F.2d 937; Wfnton v0 Thom-
     sons Tex.Civ.App., 123 s.w.2d 951. D o otf
Hon. James E. Kilday, page 5   (O-4853)


          The Texas Court of Criminal Appeals expressed the
same view in Ex Parte Truelock, 140 S.W. (2d) 167.
          We conclude, therefore, that the fact that a carrier
holds an Intrastate specialized motor carrier's certificate
or an intrastate contract carrier's permit, does not warrant
the Railroad Commission in refusing an authorization to a car-
rier to use the state highways in interstate commerce where
he has obtained an Interstate Commerce Commission's certifl-
cate authorizing such operation.
                                 Yours very truly

                                 ATTORNEY GENERAL   OF   TEXAS
                                 By /s/ David W. Heath
                                 David W. Heath, Assistant
APPROVED NOV 18, 1942
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY:       BWB, CHAIRMAN
DWH:AMM:wb
