             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
