Railroad:Commissionof Texas
Austin,Texas

Centlemen:

                        OpinionNo. O-3107
                        Re: Effect of previsionin CrawfordTruck Lines’
                            interstatecertificaterestricting   the cartifitite
                            holder to the use of trucks owned by him.

You have handed us your file on CertificateNo. 3084 issuedto RussellC.
Crawford,dba CrawfordTruck Lines on Apnll 29, 1940, and in connection
therewithrequestoux Opinion in responseto these questions:

     It1 - (a) May CrawfordTruck Line, under the facts presentedby the
           enclosedfile in view of Its limited,Texas interatLte~:
                                                                common
           carriercertificatelawfullyoperate\:, motor vehicleunder lease,
           and
           (b) may said lines lawfully transferthis RailroadCommission’s
          :‘Pl#e&end%id&blfication cards to such lease vehicles?
     4   2   - Does thie Commieeionhave the power to requirean owner of Tems
               IntersteteCownon Carrier certificateunder the facts and con-
               ditionsprerrontedby the file, to wwn the motor vehicles operated
               under such certificate,or should this Commissionreco&ze 11~::::
               leases to the same extent as they are recogcizedby the Interstate
               CommerceCommlseion?

The certificatein questionand its supportingorder containthe provision
that “All equipmentto be operatedunder authorityherein granted is
restrictedto that owned by the holder of such certificateand shall not
exceed seven truhhr.I’Purely interstateoperationsare authorized,intrastate
             pcohlblted. The order aleo containsthe following:
servicesare .i,

    ‘TIiSCOMMISSIONFURTHERFINDS that thelaigh~+yBttha.t~~~~3.8~~2ican0.:~opoaea
     have heretoforebeen used by the applicantunder his contractcarrier
    permit, interstate,and that the h&hwaya are of such type ef construction
    and in euch state of repairand maintenanceas will permit the traffic
    sought to be place thereonby the applicantwithout unnecessarydamage
    and otherwiseinterferingwith the general#IbMc: tlping,#said highways
    for generalhighwaypurposes;that the applicanthas furnishedsatis-
    factoryproof of his financialresponsibility.; and that the equipment
    proposedto he used by the applicantcompliedwith the laws of the
    State of Texas in reSard to safety devicee,dimensions,etc.
Railroafi             of Terns, page 2 O-3107
            Cor.xniasion



     "VIE CoEiMISSIOIJ in iaauin;;
                                 this order has not consideredthe vnatter
     of convenienceand necessity,nor the ac‘squacy  of the existingtranapor-
     tntion facilities. Therefore,niter c:1refull:: cor,aidering the evidence,
     the law and its own rules ond regulations,tineCommissionis of the
     opinionthat tb.sapplicationshouldbe granted,subjectto the limitations
     and restrictionshereinafterset forth;and the ContractCarrier
     Permit 170.111.87, Interstate shouldbe cancelled. Accordingly,jutis
     * * Y"

Unless it can be gleanedfrom the quoted portionof the or,derthere is nothing
in such order or elsewherein the file which disclosesthe reasonactuating
the Cormlaaion in nlacingsuch restrictionin the certificate. It has been
settledby the case of THOMPSONvs. MCDONALD,95 Fed. (2) 337, certiorari
denied,and a n~&er of opinionsby our,Couzta of Civil A:>peala,    error
denied in some cf tb.em,thatto l&ully en@@ in B pur:!.:::nterstate    motor
carrieroxration one must obtain from ths RailroadCoxii::slon   of Texas a
certificateor permitevidencinga ftidingthat the highxayato be used wiil
be able to take the added trafficburden. Hence, it is not difficultto
mderatand the reason upon which the restrictionof this o=rstion to seven
truckswas grounded.Had no limitation of this nature been placed Ln the
authoritythe operationmay have presentlyemergedwith a hundredor more
trucks,thus throwingon the highvayaauthorizedto.be used a traffic burden
m?nytixesgreaterthan tha Commissionhad in mind would be dare wy:eaLL
manted the certificate.But, it seems to us that in grantingthis cer-
tificatethe Commissionmust have found that these highwayscould adequately
handle as many as seven owned trucks and a leased truck is no greaterburden
to the highwayand will congesttrafficno more than one which is owned by
the operator, We are left to concludethat other considerations   than hi&way
conditionsand trafficsafetymust have producedthe attemptedreatrictlnn
to the use of trucksowned by Csawford. As we understandthe opinion in
the McDonaldcase, aupra,the RailroadCommission'sjurisdictionover purely
interstatemotor carrieroperationsis limitedto considerations     of hi&my
conditionsand trafficsafety. It is our opinionthereforethat the
restrictioncontainedin this certificateis void ~inaofar   as :t >rouldprevent
the use of leasedtrucks. Your question& (a) is answeredIn the affirmative.

B::-
   the above we do not mean to say that mder no circumstancescould the
Cxxxiaaionrestrict an interstateoperationto trucks owned by the certificate
holder. In aome instancesit may be that it could. As an illustration;
auqpoae in a given case the Commissionshouldnot limit the number of i--ucks
?rhichcould be used, but believedthat if the carriershouldbe permitted
to operatt leasedtrucks therewould bs certainseasonsdur?ngwhich it
?.iouldglut the highwayswith leasedtrucks,believingalso that any such
aenaonalbua'inens  wouldnotwarrant the carrierin purchasingsuch equipnsnt.
Urder such circumstances, it is not at all certainthct the Cormniasion
m?&t not be able to protectthe highwaysagainstsuch undue ,trsffic  b:
siqly requiringthat the carrieruse only equipmantamed b:, i,t.

Our nn%er.toquestion1 (b) is that such platesand identificationcards
no::be lawfullytransferredwith the Commission'spermission. However,
c,       .




 RailroadCommissionof Texas, page 3 O-3107



     such permissionmust be obta:;ned
                                    as is customarilydone vhen it is desired
     to retire one vehicleand >ubc,titute
                                        another.

 Answeringquestion2, it is our opinionthat the Commission,shouldrecoaize
 suck leases,providedthe leasedequipmentis in compliancewith the
 stetutesand rules and regulationsof the RailroadCommission. In other
 words, the Con?nlssion
                      should permit the use of leasedequipmentif it would
 authorizethe use of the same equipmentwere the same owned by Crawford.

 You also requestour opinion in responseto the followingquestion:

             "(3) Does the owner of e Texas InterstateCommon     ZarrierCertifi-
             cate have su.thoT*i~ty,
                                  so far as this Commissionis concerned,to
             operateas a "broker'as that term is used in the FederalMotor Carrier
             Act, if such owner be authorizedby the Interstete'CommerceCommission
             to act as a 'broker'es that term is used in said FederalAct?"

 The licensin::of interstatetransportationbrokers is providedfor in Xec.
 311, Title 49, U. S. C. A. It is thereinprovidedthat it shall he unlawful
 for a broker to "employany carrierby motor vehiclewho or whichisnot the
 lawfulholaer of an effectivecertificateor permit"issuedb> the Interstate
 CommerceCommission. As alreadynoted herein,such interstatecrlrricrs  must
 also have certificatesor permitsfrom the RailroadCommission. evidencinga
 findir.gthat the highwaystraversedby them will stand the trafficecaLsed
 by the operation. If the carrierwho performsthe actual transportstion  at
 the instanceof the broker has no authorityfrom the RailroadComm5.ssi.on,
 then, of course,the operationis unlawfuland both the carrierand broker
 are violstin the motor carrierstatide. But, we are of the o?irionthat
 the Commissionmsy not interferein the actionsof a broker, licensedunder
 t&e Federal rtatute,in his arrangingfor freightto be transportedpureb:
 in iuu4siiatecommerce,where the actual tronsportatioi?is to be perforE?
 b;~s carrierholain,a certificateissued by the Railrood~  Co?xfiiss~.on
 edhorizing use of the hi&vsys, an2 the act of transportalio~itself i.S
 within.the certificate.
                                           Yours very truly

                                           ATTOIQm GElEPALOF TEXAS

     GRL:ob                                By s/ Glenr.9. Lewis
                                                    Assistant
     APPROVEDMAY 21, 19&l

     s/ GroverSellers                      APPROVXD:OPINIONCCXMITTElj:
     FIFST ASSISTAX
     ATTOREEYGENERAL                       By    EWB    CHAIRW.1~
