             OFFICE   OF THE AITORNEY         GENERAL   OF TEXAS
                                     AUSTIN
-a-
 -a-




       Honorable Len d. Snlth, Chairman
       Reilroed  Codsslon   of Texas
       NlatLIl, Texas

       Deer sir:



                 This Is In enswe
       in regard to ,wtiole  6479,
       Statutes or nmis.    your Is                     ert 68 tollovJs:

                   vnder   date   or J                   the rronorable

                                                        trtktion of
                                                        Revised Civil
                                                        unded to hln


                                                  ioeble on a oer-
                                                  road provides POT
                                                  und on ona day and




                                  e fulfill    the tiinlmm requirements,
                                  mice,     of Subdivision 2 of ~rtiole

                 -In the opinion above mentioned, the.kttorney
            Caneral ruled *that the wwds *at least one train
            e dep,  a6 used in Subdivision  2 of krtiale  6479,
            meag None train a day each way.“(

                  *. . ., we have before us a schedule appli-
            ceble on a railroad  branah line whloh provides iOr
            northbound passenger aertioo   over the entire branoh
I-Ion. Lou A, Smith;   Chairman, page 2


     on Mondays, Kednesdays and~yridays,  and south-
     bound passenger service over the entire ‘branoh
     on TEesdays, Thursdays and Saturdays1 and which
     does not provide for any southbound passeqer
     service on Mondays, Redneedays and Fridays, or.
     any northbound passenger service on Tuesdays,
     Thursdays and Saturdays.
           ‘Your opinion is requested as to whether
     peskenger service so provided Is suffioient    to
     aeet the minimum requIre%ents of atlale     6479
     of the Revised Civil Statutes,   &a avended.”

The statute involved In this      question   is Section   2 of &tIols
6479, which reed8 as followsr
           *It shall be the duty of the cozmission to
     6ee thst upon each railroads In this State carry-
     ing passengers roti hire thcru shell be run at
    .leest one traIn,each      day, Sundays exoepted,~$.on
    which passengers stall        be hauled; pmvided,     how-
     ever,   the Comission     my, ti its discretion,
    upon application      filed and after notice ahd hear-              . . ..(   -.,;..:‘>:.;.:




     ing, relax such requirement aa to any reilrozld,
    nor part, portion or brsnoh thereof,         when In its
    opinion,    publio oonvanienou perfits       of such re-
    laxation,     nnd shall relax such roquirment        when
    it appears upon such hearing that tha ruming of
    one train each day, Smdays exoapted, is not
    necessary In the rendition         ol adequate stirvice to
    the publla, OP that on any railroad,          or part, or
    portion or branch thereof,         passenger service as
    frequent as one traiil aaah day, Sundays exaepted,
    with the passeu;.;sr traffic       OPllared and reasonably
    to be expected,     does rot and will not say the
    cost of suah sarvioe plus a reasonable return a?-
    on the property ezploynd In the rendition           of auoh
    servioe;    and Co~~A.ssIon shall LPurt,!:er zegiilrlute
    passenger train service        so as to rw~uira i;t?e
    stoppaa,;e. of. suoh trains,    for a time mfficient      to
    receive and let orf pzsseneors, at such St&Ions
    8s my be desimzted         by the COZIdSSiOn; tird It
    nny further prescribe        the nuder    of trr:En so
    operated ezch day which shall be re~>ircd to Stop
    at County seat stations;        and if ouch railroad,
    or braaah of same shall operete a g&olIua or
    electric    motor car over Its line,       carryI.nS pas-
    aengers Por hire In this State, such motor Car
ffon, Len A+ smith,    Chaiman,.psge     3


         shall be deemed a train Hithin the moanIn&of
         this Article and shall be subjeot to and includ-
         ed within the provisions hereof.”   (UhdersoorIng
         ours)
          The question we are asked to deoide Is whether the
phrase net least one train each dapn means only one train a
day One w&y or means om truin a day eeoh way.
             fn 1931, when Attorney Oeneral hllredcs   opinion
(by Assistaut     iLlbert Rooper, January 17, 19X),  to :&Ich you
p6fer,    was written,   the statute in qwstion read us follows;
             *Tt shall be the duty of the CosmIssioners
      to see that, upon every Railroad branch of sam,
       aarry!.5g passeAngera for hire in this State,         shall
      be run at least one train e day, Sundays excepted,
      upon whioh passeh+;urs shall be hauled, and the
      Co&sIoners        shell 03ve no ‘power to relax this
        rovislon;    provided, however,. the ComlsB1on my,
      Pn its discretion,       relax such requir=ent     as to
      any reilrosl     in this State less than fifty       tiles
      in length and the gross annual passengai revoaue8
     -of which ere lessthan         $SSOO.COl end said Coanis-
      sion shall further re&te           passenger train sbr-
      doe to stop for R tI.me sllffioient        to receive and
      let off pcsmngora        at such stations    es xay be
      desI@ated      by the Comla~loner;      provide6 that
      So-z trains saoh way, carry-          gaosen@rs    for
      hire, S.f so !xmy em run dnily, Sundays excogtod,
      be required to stag as aforesaid         at all oouuty
      seat   stations J ad If ouch rtiI.lroad or brtrrroh of
      tmne shall operate a gasolIn& or .olectrIo notor
      ear over Its line carrying        passengers f.>r hIro
      in this State, suoh motor oar shall be deewd~ R
      train -wIthIn the meaning of this Article and
      shall be subject to and included within the re-
      qulrenants the.t at least be ruu every day, Sun-
      days excepted,      s.nd the requiremnt    r;ndo by the
      ComuIesIoaers as to stoppii~g for a the StdTI-
      oient to receive and-let off gassungers at dasIg-
      neted stations ,w
&torneg Oeneral iillsedgs opinion held that the worda *at
least one train a day” meant omz train a drig eaoh Way; and
erter oiting sev6ral authorities  on statutory construction,
the opinion contained language as follows;
    HOIon.LOn A. %ith,   ChaIrman, page 6


         a railroad Op8rathg o&Such a Sohedale prould
         be running a train only every other day, and in
         violation  of,.;rtl~le   6479, '5s wall as irtlalo
         6357. Treating the two Statutes prospect1vel.y
i        and 6ivih6 efl'eot to bath, railroads     are reaulrod
         by their ter;ns to operate a trsln a day oath way
         la order thtiit all passengers and i'roight *my be
         6oeomodated.     That these two Articles   Should be
         construad toc.e$her is Supported by the oaS% of
         Raikoad   Co~vnission of 'Iex4s, et al vs. Galveston,
         H. ES. A. Ry. Coi, lJ.2 9. 71. 345, 349.'
                ae are frank to say that if tha question were an
     open one we might reach a different   con~oluslon from that
     stated in :,ttornoy Ceceral Allred*   opinion,   but in view ot
     that opinion aud what has transpired since it was written
    .we do not feel inclined to ~0vcrruJ.e .it.~
               We are advised that the Rallroad Co;cmission oi
    Texas has followed that opinion, that it has beeh uniformly
    acquiesced in by the railroad    compahles, and that it has
    been considered the law by all persons comemcd,      cantlnu-
    ously since it has been written.     Tn.ths GaSe of ~hoorlpanv.
    Terrell,  Co;lptroller, 109 Ter. 173, 202 3, W. 727, the su-
    preme Court of Tcras said:

               ~a#ain, aouhd publio policy recjulras .tha
         sol&g    of xaere doubtn in Savor of ths coxmruo-
         tion put upon laws by the departments and ofSi-
         uers charged with their administration,    . . .-
                It will be notl$aU that the Statute in question
    now reads dlXerently,    partioularly ln the last part of the
    paragraph, fron the way it read in lF31 when jdttorhey Gen-
    eral ;rllred*s opinion was writ&e&.   Yhe chon6e WAS SLsdo in
    1933 by Senate sill   331, Gh, 111, 43rd Legislature.    The
    part Y;B are concerned with waS not ohahicged except that the
    words, "at least one Grain u.da~~* were chcz;cd to *at least
    one train each day", but we believe that ehnn::9 1s immaterial.
    The material chances viere in,the latter  part of the paragraph
    after the word *provided."
              Wa doue to this conclusion:     Pihen the Legislature
    amended this,statute  In 1933 azI did not .ztorilly     cbunse
    the part of tho Statute providln.~ for ut loast oze train a
    day, Mioh provision   had beea previously   construed by the
Han* Len   A.   smith,    chairman,   gage 6


Attorney Gsneral as meaning one train R day eaoh way and            .
enforced to that offoot,  we believe the Legislature   intand-
ad for that oonstruction  to continue to be the law.     III the
aase of oxen vb Gates, 119 TSX. 76, 24 3. ‘ri’. (2d) Sal, the
commission of LA~peab said:
             “It ~ziust b; presumed that, v&u the ~a&&-
      turo psoed the last-nszed          statute,   it knew the
      commissioner of the land office          had intersrated
      art1010 5526 as not requ:rm            the applicant ior
      rsinstatemcnt    to pay aaorued interest        to ths date
      OS reinstatement,      but only that which was due
      under the terms of the contract which was b&in6
      reinstated.     If the Legislat’ze,        by the psxzzgiie
     of article     5%lb,    cozt:tglated     a ohan6e Prom the
     method in forceby the land offloe,             it would no
      doubt have made plain its purpose to change the
     ruleot oonstruot~on then be% 4pplied.                Not
     h4ting a030 SO, it mit          bo pra3miad tkt     th0
     .lox-continued      cons truotion .of that department
     MB intended to be continued under the provk:ons
     OS, the later law.*
   the ease of kOXallum t. ~ssoaiatod Z?:etcil Credit Xen, 26
   w. - (2d)
          .~.Il.5 {reversed on other grounds) the Court of Civil
appeaui   et ~ustxn      sala:

           *Tn the recent case of Odeikv. Gates (Tex.
     coti. Apg.) 24 s. w, (Zd) ?181, it ~4s held that
     St would be presusmd, aCsent sy~iffc    largua6e
     in an act azendlrg a doubtful statute vM.ch a
     &p.rtmont. of tk. ,ststs government had construBd
     in a certain man%ar for 25 years, to be t&e fn-
     tention of the Legislature  to conttnue the &Fart-
     mental constructj.on of the statute.*
           yt Ls our opinion, snd you =re so advised, that you
should coztlnue to follow Attorney General .Ured~s     opinion
to the elfsot  *h&t tka phrase in irticla  6478, R.C.S.,   saying
*at least one train satoh day* means one train a day euch way,
                                               yours very   txulg
