        TWEA-JTORNEY             GENERAL
                    OF   TEXAS




Honorable James'E. Kildag, Director
Motor TransportatLon Division
Railroad Cotimlssionof Texas
Austin, Texas
Dear Sir:           Opinion No. O-1843
                    Re: Authority of Railroad Comniisslonto
                         limit interstate operations of High-
                         way Motor Freight Lines, Inc.
        You have handed to us copy of a certificate of conven-
ience and necessity, dated January 14, 1936, issued to Highway
Motor Freight Lines, Inc., authorlzlng an exclusively inter-
state operation, using not more than thirty-nine trucks. The
certificate contains the following:
   "RESTRICTH) ENTIRELY TO THE TRANSPORTATION OF
   COMMODITIES MOVING IN INTERSTATE COMMERCE, FROM
   POINTS BEYOND THE STATE LINE TO POINTS WITHIN
   THE STATE OF TEXAS, AND FROM POINTS WITHIN THE
   STATE OF TEKAS TO POINTS BEYOND THE STATE LINE;
   BUT PROHIBITED FROM MOVING ANY COMMODITIES EITHER
   INTERSTATE OR INTRASTATE, BETWEEN ANY TWO TEXAS
   POINTS.
   "THIS CERTIFICATE SHALL BE LIMITED AND RESTRICTED
   TO NOT MCEEDING TWO ROUND TRIPS PER WEEK OVER
   ANY OF THE FOLLOWING HIGHWAYS:

   "State Highways Nos. 1, l-A, 2, 3, 5, 6, 7, 8,
   9, lo 12, 13 14, 15, 16, 20, 24, 26, 31, 35, 40,
   43, 64, 71, 86 and 19 as far South as Huntsville
   and no further, 45, 156, 114 and 121.
   "Federal Highways Nos. 66, 67, 69, 77, 277 and
   370 from Bowie to Amarillo."
        In your letter of June 7, 1940, you request our opinion
in response to the following questton:
       'Does the Railroad Commisslon of Texas have
   the authority to restrict motor carriers oper-
   ating wholly in interstate commerce to the ex-
   tent of prohibiting said interstate carriers from
   serving intermediate points?"
                                                                 -




Honorable James E. Kilday, page 2        O-1843


        To make your question clear you offer the illustration
that the port of Houston receives a-large,vblume of freight
moving byboat from the Atlantic seaboard, and it is there
unloaded and immediately placed on motor vehicles for trans~
portation to Dallas and other Texas cities, points of original
destliiation. You mention that this freight universally has-
been accepted as freight moving in interstate commerce, which
Is undoubtedly correct. Highway Motor Frel ht Lines, Inc.,
desires to receive'such freight at Houston 7and other Texas
cities under similar circumstances), transport the same over
highways described in the certificate and'.deliverit at points
in Texas on such highways. As an illustration;'in a purely
interstate transaction, it would pick up goods at Houston and
deliver the same at Dallas wFthout deviating from the highways
named In its certificate.
        The Highway Motor Freight Lines, Inc., holds a certi-
ficate from the Interstate Commerce Commtssion which would
authorize the operation so far as that body is concerned. The
validity of the restriction prohibiting the carri.er.'from
                                                         mov-
ing any commodities in interstate commerce between any two Texas
points is thus brought into question.
        Since the Federal Congress enacted the Motor Carrier
Act of 1935, 49 U.S.C.A., Sec. 301, et seq., the Railroad Com-
mission of'Texas cannot concern itself with questions oi~public
necessity and convenience with respect to purely Interstate
motor carriers, those questions being within the field occupied-
by the Congress. However, in the case of Thompson vs. McDonald,
95 Fed. (2d) 937, certiorari clenled,it was held that the pre-
servation and safety of the highways themselves are still with-
in the jurisdiction of the Railroad Commission, and that this
body may still deny the use of the highways to an interstate
carrier when it is sufficiently shown that the preservation of
the highways and safety of the traveling public would be en-
dangered by the added traffic burden. As you know, the Austin
and.Waco Courts of Civil Appeals have followed that decision
in a number of cases, in some of which writs of error were
denied.

        The certificate in question authorizes only the carry-
ing of freight in interstate commerce from a point within this
State to a point without its boundaries, and vice versa. This,
of course, is a narrower authority than if the carrier were
allowed to handle any and all Interstate shipments regardless
of the points where it mfght receive or deliver the same. Its
use of the highways is correspondingly less. In granting the
certificate upon such terms as it contained, the Railroad Com-
mission necessarily found that the highways traversed,could
Honorable James E. Kilday, page 3         o-1843


properly handle the narrower service. On the other hand,
there is absent any finding that the highways wouldbe able
to withstand the added burden of the heavier traffFcwhlch
would~~'follow
             from the~broader authority, - that Is, a cer-
tificate authorizing an unrestricted interstate operation
over all the hIghways described.
        Our opinion follows that the RaIlroadCommission has
the authority to enforce the restriction contained In the
certificate.
                               Yours very truly
                            ATTORNEY GENERAL OF TEXAS


                               By s/Glenn R. Lewis
                                    Glenn R. Lewis
                                    Assistant
-GRL:LW:wc
APPROVED JUN 18, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
