            OFFICE       OF THE     ATTORNEY    GENERAL   OF TEXAS
                                       AUSTIN




Konorable James B. Ulday,     Dlreotor
Uotor Transportation  LIrlaion
kilroad   commlsrion or Texas
Austin, Taxi38

Dear Sir:




              41    ara in                                Zay 2, 1930,   *herein
you outline        the followln,c
                                                        s issued .leptezber
                                                       should prcparly
                                                       ame of *Contra1
                                                        it was lsrusd to
                                                Themmiter,   spaolsl Com-




                                         cntly or arbitrarily ohm&ad
                                          to end froc which the operation




Brelght Lfne8, Inc., filed     Appilcatlon   NO. 5182, ant en Joptombcr 27,
1929, the tillroad    Commlesicn of Toras lersued to tho said Central
‘z-eight Llnea, inc.,   Class 6 ?ermlt No. 6l.82, authorizing      the aald
i;entrrrl Freight Lines 1 Co.,
                           i     to  operate  a6 a Class  B ;iotor  carrier
“within the btate of     exam curd substantially   tithln  the turrltory
es follo*s : In fine around I&CO, ‘iexas, and to and from all other
Honorable James 5. Klldey, key 19, 1939, Page 2


incorporated cities within the State of Texas." On March 3, 1932,
Central Forwarding, Inc., filed its application for what we will
call e Special Commodities Permit, end on &rch4, 1932, the Railroad
Commission of Texas issued to the seid Central Forwarding, Inc.,
Speoial Commodity Carrier Permit No. 12410, authorizing the holder
to operate es a Special Commodity Carrier "within the state of Texas
and with the territory as follows: It is especially understood and
agreed that this permit authorizes the transportation of the follow-
ing commodities only: Livestock, milk, household goods and farm
msohinery. From: Waco to all points In Texas and from ail points
in Texas to Viaco. 011 field equipment: To and from all points in
Texas." On September 14, 1934, the Railroad Commission of Texas
issued to the said Central Forwarding, Inc., corrected Permit Xo.
12410, in which the Central Forwarding, Inc., was allowed to carry
the same commodities over the same territory, but with the following
restfictions: "The transportation of the following commodities la
prohibited from one dealer to another: household goods and farm ma-
chinery; the transportation of oil field equipment is restricted to
that transported to or from actual oil fields and the carrier is pro-
hibited from transporting same from one dealer or refinery to another
d,?aler or refinery, or from e dealer to a refinery or from a refinery
to a deeler.n On June 22, 1937, the Railroad Commission of Texas
issued to Central Forwerding, Inc., Special Commodity Carrier Permit
No. 12410, authorizing operation es a special commodity carrier, as
follows: "It is especially agreed and understood that this permit
authorizes the transportation of the following commodities only:
household goods, used office furniture end equipment livestock
milk and farm machinery, rrom Deco to all points in {exas and &om
all points in Texas to Vlaco. Oil field equipment to and from all
points In Texas. The transportation of household goods, used office
fu*nlture end equipment and farm machinery, is prohibited from one
dealer to another dealer. The transportation of 011 field equipment
is restricted to that transported to or from actual 011 fields end
the carrier Is prohibited from transporting same from one dealer or
refinery to another dealer or refinery, or from a dealer to a refinery
or from a refinery or a dealer."
           You request our opinion "es to whether or not the Com-
mission has authority to change Permit i;o. 12410 in order to remove
the res%rictions and place the permit in conformity with the original
Class B ?ermit No. 5162."
           In connection with your request, Honoreble Tom P. Scott
0r Kaco, Texas, Attorney for Central 'orwarding, Inc., has submitted
to us a written argument and brief, from which quotations ere taken
es follows: "The 1931 law provided that those that were then operat-
ing under Class B Permits would be entitled to the appropriate kind
Honorable James k. Kllday, May 19, 1939, Page 3


0r new cartifioate. Class b. Permit No. 5182 which wee issued
September 27, 1929, should properly have been Issued at that time
In the name of Central Forwarding, Ino., but through error it wes
lasued to Central Freight Lines, Inc. Special Commodity Permit
No. 12410 was issued in lieu of Class B Permit No. 5182 and waa
issued properly, es to n&me, to Central Forwarding, Inc. ... Central
Forwarding, Inc., es a matter of law, was entitled to Permit No.
12410, issued without any restrictions In lieu of Class B Permit
No. 5182. Through en error of the Commission the restriction was
placed in said substitute permit. Central Forwarding, Inc., had
a vested right in the Class B Permit, which through error of the
Railroad Commission wes taken away when it issued the Permit oom-
plying with the law of 1931. The Speoial Commodity Permit No.
12410 was issued without any notioe to anyone and, therefore, we
submit that the Railroad Commission had the right to correct the
mistake es above set out, which.was made when issuing same without
giving notice. In other words, if notice is necessary for the correc-
tion of a mistake, it certainly would have been necessary in the first
instance, and if it were not necessary in the first instance, it
would follow, as a matter cf law, that it would not be necessary to
correct e mistake made when the permits were being changed In order
to comply with the emendmsnt of 1931."
            We, therefore, construe your question to be in substance
v.hether the Commission has authority to summarily change the permit
in the manner mentioned by you.
           House Bill No. 654, Chapter 314, page 698, General end
Special Laws of Texas, Forty-first Legislature, hegular Session,
1929, pleoed motor carriers under the regulation of the Railroad
Commission 0r Lexes, and divided the same Into two classes: The Class
A Kotor Carriers were what may now be celled Common Carrier Kotor
Carriere.  The Class B Motor Carriers as defined in the 1929 Act cor-
respond roughly to whet are now called Contract Carriers and Special
Commodity Carriers. Scotlon 5 of that Aot provides that Class A
permits oouldbe sold end transferred. Section 6a of that.Act pro-
hibited the assignment of Class B permits. That Act contained no
inhibition against the holder of a Class A permit also holding a
Class B permit.
           In 1931 the Legislature enacted more comprehensive statutes
relating to the regulation of motor carriers, the same being
Article Bllb, Section 1 to 22. Section 6bb of.said Article 911b pro-
hibits the granting of e permit to operate as e contract carrier to
any person operating es a common carrier. Under Section 5, Certi-
ficates of Convenience end Necessity authorizing operation es a
Honorable James A. Iiiilday,   Yay 19, 1939, ?age 4

                                                                     .

oommon carrier may be transferred, but the statute contains no
provision for the transfer of cny permit. Section 5 pro-lded for
the issuance of Certificates of Convenience and liecessltyto those
Rho were lawfully operating under such certificates at the tine that .
Article 911b went into effect. However, said Article Bllb contains
no such provision as the one last mentioned with reference to any
type of carrier except the common carrier.
           Section Ba reads, in part, as follows:
          YJo motor oarrler now operating as a contract carrier
     or that r.ayhereafter desire to engage in the business of
     a ccntract carrier shall so operate until it shall have
     received a permit from the Commission to engage in such
     business and such p.zrmlt shall not be issued until the
     applicant shall have in all things complied with the require-
     ments of this Act; nor shall such penit be issued unless
     the character of business being done or to be done by the
     applicant strictly conforms with the definition of a con-
     tract carrier.”
           Section 60 reads as follows:

          “No application for permit shall be granted by the
     Cormmissionuntil after a hearing nor shall any such per-
     mlt be granted if the Commission shall be of the opinion
     that the proposed operation of any such contract carrier
     will impair the efficient public service of any author-
     ized common carrier or common carriers then adequately
     serving the same territory; provided, howev-r, any person
     now lawfully operating as a Class *Bn operator in this
     State who may desire to continue in the business of a
     motor carrier shall rile an application for a permit or
     oertlfloate under the terms of this Act within thirty (a
     days after the effective date hereof and it shall be the
     duty of the Commission to determine such applications
     forthwith and such applicants may, subject to the pro-
     visions of this Act and to the orders, rules, rates and
     reguiations of the Commission continue to operate as motor
     carriers pending the determination by the Commission of
     such application.”
           Section 6d, as amended in 1931, reads, in part, as follows:
          “The Railroad Commission is hereby given authority
     to issue upon application to those persons who desire
     to engage in the business of transporting for hire over the
     highways of this State live stock, mohair, wool, milk, live
Honorable James h. Kllday, kay 19, 1939, Page 5


     stock feedstuffs, houeehold goods, 011 field equipment,
     timber when in its natural state, farm maohinery and
     grain speoial permits upon such terms, conditions and
     rostrlctions as the Railroad Commission may deem proper,
     and to ma::erules and regulations governing such opera-
     tiona keeping in mind the protection of the highways
     and the safety of the traveling public; , . .n
          Section Bd, as amended in 1937, and as it now exists,
reads, in part, as roii0wt3:

          “The Railroad Commlsslon 1s hereby given authority
     to issue upon application to those persons who desire
     to engage in the business of transporting for hire over
     the highways of this State, livestock, mohair, wool,
     milk, livestock, feedstuffs, household goods, 011 field
     equipment, and used office furniture and equipment, tlm-
     ber when in its natural state, farm machinery, and grain
     special permits upon such terms, conditions, and rea-
     trlctlons as the Railroad Commlaalon may deem proper,
     and to make rules and regulations governing such opera-
     tions keeping in mind the protection of the highways and
     the safety of the traveling public; . . .*
          It 1s our understanding that Oentral Freight Lines, Inc.,
has been operating as a common carrier motor carrier at least since
1929. In fact, you have handed us a file which shows that on
September 16, 1929, the Railroad Commission Issued to the said
Central Freight Llnea, Inc., Certlflcate so. 2303, being a Class A
Motor Carriers’ temporary Certificate of Convenlenoe and Necessity
and that on ~ebrualy 21, 1930, the same was declared permanent by the
nailroad Commission. The file further shows that on August 22, 1931,
the Railroad Comlaslon issued to the said Central Freight Lines,
Inc., Common Carrier biotor Carriers’ permanent Certificate of Con-
venience and Necessity No. 2627, in lieu of said Class A Certificate
No. 2363.
          It la immaterial for the purpose of this inquiry whether
a special commodities carrier be classed as a common carrier, a
contract carrier, or in a class by itself.
          In view of the fact that Class B Permit No. 5182 was
applied for by Central Zrelght Lines, Inc., it 1s clear that it was
not any mistake on the part of the Railroad Commission that Permit
NO. 12410 was issued to Central Freight Lines, Inc., instead of to
Central Forwarding, Ino. Central Forwarding, Inc., appeared as
a stranger in 1931 when it filed its application resulting in,the
issuance of Permit No. 12410. Even if such permits be regarded
es in the nature of certificates authorizing a limited kind of cormon
Bonoreble Jamr:a L. nilday, L’ay 19, 1939, 3age 5


oerrier   SelTiCe,   hntr81   r'Ol%erding,     Inc.,     could   clals   no "grend-
fether” rights in a Certlflcate theretofore ovned end operated by
CentrF.1Freight L.lnes, Inc. , there being no transfer of the certl-.
fioste or pcrmlt.   ken  If tb.erehad been a trenafer, or lf Centrel
$relght ilnea , Ino., and Central Forxardlng, Inc., be considered as
ene end the same (vrhiohv.8think cannot be done) the sltuatlon 1s     .
ur;chan&ed. Central Porwardlng , Jnc ., accepted the permit issued to
it, not appealing from the order of tbo Commlselon granting Certi-
ficate Ko. 12,410, v;hlehit could and should hsve done if not
eetlafied.

              If this permit be reFarded as a contract oarrlar permit,
or in a class to lts<?lf,an additional ground exists for our holding
herein. As already noted herein, the only permsnent advantage given
by Article 9llb to a carrier who was in operation at the timethe
ertlcle went into effect, was the advantage given to common carriers
by -eotlon 5.      Ttx only advantage given by bectlon 6c to the contract
eerrler was that if he was lawfully operating as a Class 6 operator
et the time aald statute sent into effect, then if he should file
his a;plloatlon :‘ora permit or certificate v:ithiinthlrty (30) days,
he should have the right to operate as a carrier pending the deter-
mlnatlon by the Coumlaalon of his application for 8 permit. Eoviever,
this  statute    did not guarantee to him the permit even though he had
been operating under e Class B permit at the tiue such article vient
into  effect.     I!lsapplication m::lght
                                        be grar.tedor it r:lghtbe denied
~rreapectlve or prior operations. The holders of ::uchpermits bed
no property right in the hlghuay3 and they had no vested right to
operate thereon for private gain. The ieglalaturo could prohibit
or ocndltlon the operation of Class B Fcrmlt Xo. 5152, or any other
  ermlt as it might see fit.     C‘tevenson vs. Blnford, 53 Sup. Ct. Pep.,
!a 1. ha:lro:ld   Commlsalcn VS. Inter-City Zorwardlng Company, 57 J .,.
                                                                       .
 (2dj 290.
          Gur answer to your c.ueation, therefore, 1s that the bail-
rosd Com;::isslon
                can not summarily renove the restrictions which were
thus placed in Permit Xo. 12410. The prooedure to be followed in
emending thle permit would be the procedure followed in obtaining
e new permit of the same nature.
                                                 Yours     very truly

                                         ByTiO~~j$O&~>AS


0RL:FG                                                           Assistant
                                             Approved: Opinion Committee
                                                       By i;.l..%.
                                                                 chairman
