                    THEAFBTOWNEY                       GENERAL
                                     OF’     %-EXAS

                                   Aus-miw     ~~.TEXAS
  WILL      WILSON
ATI’ORNEY      GENERAI.
                                      August    2,    1962

         Honora.ble William    J. Murra.y, Jr.         Opinion   No. WW-1410
         Chairman, Railroad     Commission
           of Texas                                    Re:   Whether the Railroad
         Austin,   Texas                                     Commission has authority
                                                             to authorize     railroa.ds
                                                             to assess   and collect
                                                             a charge,    In addition
                                                             to the fare for trans-
                                                             portation,    for checking
         Dear Mr. Murray:                                    and handling     baggage.


                     We have received   your letter    in which you state that
         certain   Texas railroads   have filed   an application    for authority
         to assess   what they refer   to as a service    charge for checking
         and handling   baggage at passenger    stations.      The question  pro-
         pounded by you is as follows:

                      Whether it would be lawful for the Commission to au-
         thorize    the railroads to assess a separate     charge for receiving,
         checking    and handling baggage at their   stations;    and whether
         It would be lawful for the railroads      to assess    such charge,  if
         authorized    by the Commission to do so.

                    You enclose a copy of the notice   of hearing   by the
         Commission on the application  of the railroads   which states    the
         facts upon which they rely in support of their    request,   which
         facts are stated as follows:

                     “The carriers     named In Note 1 desire           to collect
              a service   charge of 25g! per piece of hand baggage,
              and 504 per trunk, for checking            of hand baggage and
              trunks at passenger        stations     on their   lines.     The
              proposed   charges are for the clerical            service    of
              checking   and the labor of handling           baggage to the
              train at origin      stations     only,   and they are not pro-
              posed as charges for transportation              on the train.
              They would be collected          and retained     by the origin
              carrier.

                     “The checking of passengerts     baggage for trans-
              portation   in the baggage car involves      a substantial
              amount of additional    service.    The passenger’s     ticket
              must be examined and either      punched or endorsed      to
                                                                    ,     .




Honorable   William   J.   Murray,   Jr.,   page 2 (WW-1410)


     show the checking        of the baggage.       The passenger
     is advised of the llmltatlons           of weight and value
     within which no added charge is made, and a valua-
     tion blank must be filled         out where the valuation
     is not within that limitation.             As a general     rule,
     the hand baggage must be weighed where there is
     more than one piece per ticket.             All trunks must
     be weighed,       with the possible     exception    of light
     foot-lockers.         When baggage is checked through to
     a point on the line of some other railroad                and
     vehicular      transfer    between stations     at some inter-
     mediate connecting         point is required,     the baggage-
     man must examine the tariff           to determine     the charge
     for the transfer,        collect   the charge,    Issue a
     transfer      tag which Is attached       to the baggage,      and
     make the required        entries   on the station      record
     sheet,
            “If a passenger      declares    a value in excess of
      the free allowance,       the baggageman collects      the
      charge for the excess value,         issues   an excess value
      stamp and records      the number of the stamp on the
      desk sheet and on the valuation          blank.   This excess
      value stamp is then affixed         to the back of the pas-
      senger’s   portion   of the baggage check as a receipt
      and indication     of the amount of protection.         When
      baggage for a single       ticket   exceeds 150 pounds,
      excess charges are made for the extra weight,            and
      excess weight baggage checks are issued           showing the
      excess weight and that the charges have been paid.

             “Each piece of baggage handled is recorded             on
      a forwarding     waybill   by description,     check number,
      destination,     and condition.      The baggage is then
      loaded on a truck and taken to the car door of the
      train baggage car.       After the baggage Is loaded in
      the car, the train baggageman signs the waybill,
      retains    the original    and returns     the duplicate
      which must be kept on file         at the origin     station.
      When trunks or other heavy baggage are brought to
      a station     by a transfer    company, a claim check is
      attached     to each piece of baggage.        Before this
      baggage can be checked on a passenger’s            ticket,
      the claim check must be surrendered           to the railroad
      agent who must first       ascertain    whether or not the
      baggage has arrived       at the baggage room and its
      condition.

             “The establishment      of the baggage checking
      charges herein proposed        Is made necessary  by the
      steadily   mounting costs      of the described  service
Honorable    William   J.   Murray,   Jr.,   page   3 (WW-1410)


     as an aid, so far as practicable,           toward reduction
     of the ever-increasing        deficits   from passenger
     service   operations.       The average station      labor
     cost of handling       each piece of check baggage is
     considerably     in excess of the proposed         charges,
     not taking into consideration          the overhead costs
     nor direct    costs which should be allocated           to
     baggage service,       such as the printing      of baggage
     checks,   waybill    forms, and other documents neces-
     sary in checking       baggage.

               “Applicants     do not look upon the proposed
      charge as a major source of revenue,              and feel   that
       the additional        cost per passenger    is nominal when
       considering      the burden of expense in performing
       deficit     operation     of passenger  service,     contributed
       to by the cost of such baggage service.

              “Similar    service   charges for the checking           of
      hand baggage and trunks have been in effect                  in
      Eastern and Southern sections              of the United States
      since November 1953, in New England territory                   since
      February 1955, and in Western territory                 since April
      15, 1958, and, to the best knowledge                of your petl-
      tioners,     the general     public     reaction    has not been
      adverse.       Your petitioners       feel    that the proposed
      charges     constitute     a justifiable       step toward pro-
      tection     against    the ever-increasing         passenger    de-
      ficits,     and that such charges will not cause any
      diversion     of passenger      traffic     from the railroads.

             “The proposed    charges are in effect        for inter-
      state traffic     and for other Western states          for
      intrastate    traffic,   and it Is the sincere         desire
      of your petitioners       that authority      be granted to
      make the same charges       in connection      with Texas
      intrastate    traffic   In order that the arrangements
      for interstate      and intrastate    traffic    may be main-
      tained on a uniform basis,         and for the other reasons
      as herein stated.”

               The only statutory  provisions  we find pertaining   to
baggage     are Articles   6369 and 6416, V.A.C.S.,   which read as
follows:

             “Art.  6369.  Baggage
             “A check shall be affixed   to every package or
      parcel    of baggage when taken for transportation    by
      the agent or servant of such corporation,       and a
      duplicate    thereof given to the passenger   or person
      delivering    the same on his behalf;  and, if such
Honorable   Willlam   J.   Murray,   Jr.,   page 4 (WW-1410)


      check be refused   on demand, the corporation       shall
      pay to such passenger     the sum of ten dollars,     to
      be recovered  in an action    of debt; and further,
      no fare or toll   shall be collected    or received
      from such passenger;    and, if such passenger      shall
      have paid his fare,    the same shall be refunded by
      the conductor   in charge of the train."

            "Art.  6416.   Passenger fare
            "The passenger   fare upon all railroads    in
      this State shall be three cents per mile,      with an
      allowance   of baggage to each passenger    not to
      exceed one hundred pounds in weight;      . . ."

              Both of the above Articles      were enacted long before
the Railroad     Commission was created      in 1891.      Article 6369,
pertainingyto      baggage, was originally      enacted in 1854 (P.D.
Article   4895) which reads practically         identical    as It now
reads and was originally      codified    as Article      4230, Revised
Civil   Statutes    of 1879, and later    carried    forward in identi-
cal language in Articles      4505, 6562, and 6369, Revised          Civil
Statutes,     1895, 1911, and 1925 respectively.

              It is apparent that It was the purpose of this stat-
ute to require      the railroads     to furnish    to each passenger
tendering    baggage a check or receipt         showing that it had re-
ceived   baggage from the passenger         rather   than allowing    the
railroad    to take possession      of the baggage without giving         the
passenger     some evidence    of its receipt      by the railroad.     This
statute    does no more than require        such check or receipt      to be
given to the passenger        and does not either      provide   for,  or
forbid,    the collection     of any charge for handling        the same in
the manner mentioned above.           There is considerably      more time,
trouble,    and expense incurred       by the railroads     other than
putting    a tag on the baggage and delivering          a duplicate    to the
passenger.

             It appears that the Legislature             prior   to 1883 had
never prescribed-    any
                     -.    particular     fare    for   the  transportation  of
passengers.     'The first   statutory      reference      we find to passenger
fares   is an Act of 1853 (P*D. Article             48gg),   which merely pre-
scribes   that It shall be lawful         for the Legislature         at any
time to prescribe      the rates to be charged for transportation
of persons and property        upon any road should they be deemed
too high, and It may exercise          the same power every ten years.

           The next Act pertaining     to'fares  Is found in Section
9, pa e 67 of the Acts of the 18th Legislature,         Regular Ses-
sion $18831   which for the first    time prescribed    a specific
fare for pa;senger  transportation     and sets the same at 3 cents
per mile with an allowance    of baggage to each passenger       not
Honorable     William   J.    Murray,     Jr.,   page   5 (WW-1410)


to exceed 100 pounds In weight,        The same identical      language
was carried     forward in Articles   4542, 6618, and 6416, Revised
Civil   Statutes,    1895, 1911, and 1925 respectively.        There has
not been any change In the statute        setting   passenger    fares
since its original      enactment In 1883.      This same Act also pro-
vided for the appointment       of a State Engineer who was given
authority    to make investigations    pertaining    ts railroads      but
without any regulatbry       powers.

            It is to be noticed    that while Article  6416 provides
for a 3 cent passenger     fee and an allowance   of 100 pounds of
baggage,  it says nothing with reference      to any charge that
may be authorized    for handling   baggage as above mentioned.    It
only provides    fer a charge of 3 cents per mile for the trans-
portation   of a passenger    and 100 pounds of baggage.

             The Railroad   Commission was not created        until    1891
(Acts,  22nd Legislature,     Regular Session,      Chapter 51, pa e 55).
We see, then, that the provisions        of present    Articles     63 2 9 and
6416 were enacted     in identical   language before      the Commission
was created.     Prior to the creation     of the Commission there
was no State agency authorized       to make any change in the fares
to be charged for the transportation        of passengers       or to pre-
scribe  any charge for any particular        service   that the railroads
might perform;    that could be done only by the Legislature.

            The original     Act creating     the Commission gave it
broad powers In connection        with the regulation    of railroads.
The main provisions       of this Act are now found as Chapter 11,
Title   112 Revised Civil       Statutes   of 1925 (V.C.S.,   Articles
6444-6519).    Articles     6369 and 6416 as above stated are not
a part of the Act creating         the Railroad   Commission.    Section
3 of the original      Act of 1891 has been carried      forward in
successive   codifications      down to Article    6448, V.C.S.

              Two of    the   pertinent      sections    of   Article’6448   are
as follows:

              “Art.  6448.   Duties
              “The Cemm%ssian shall:
              “1.   Adopt all necessary    rates,           charges and
      regulations,      to govern and regulate            freight     and
      passenger     traffic,   to correct  abuses           and prevent
      unjust discrimination       and extortion           in rates of
      freight     and passenger   traffic  on the           different
      railroads     in this State.
Honorable   William              J.   Murray,   Jr.,     page 6 (WW-1410)


             “9.    Make and establish     reasonable      rates for
      the transpartatlon     of passengers      over each railroad
      subject    hereto,   which rates    shall    not exceed the
      rates fixed by law.         The Commission shall have
      power to prescribe       reasonable   rates,    tolls    or
      charges    for all other services      performed      by any
      railroad     subject  hereto.
            ,I
                 .   .   .   '    (Rnphasis     added)


            The above provisions      give the Commission broad au-
thority   to adopt rates,    charges,    and regulations     to govern
and regulate    passenger  traffic    except that the rates shall
not exceed the rates fixed       by law.    In other words, the Com-
mission   may now determine    the amount required       for the trans-
portation   of passengers    so long as it does not provide         for a
fare in excess of 3 cents per mile and authorizes             as part of
said transporU.%ion    an allowance    of 100 pounds of baggage for
each passenger.

              It is also to be noticed       that Section     9 as above
quoted provides      that the Commission shall have power to pre-
scribe    rates or charges for all other services           performed   by
railroads.      Since the statute     pertaining     to the fare allowed
to be charged pertains        only to the transportation         of the pas-
senger and 100 pounds of baggage it appears that the handling
of baggage as above quoted constitutes           "other    services",   since
the other services       consist   of necessary    time, trouble,     and
expense of the railroads         in handling   baggage in the manner
as they have above described         their operations.

              The roads are authorized      to make such charge for
handling    baggage in Interstate      transportation.      If it Is a
proper and reasonable      charge for interstate       transportation,
we believe     it is just as proper and reasonable         to allow such
charge for Intrastate      transportation.       It is just as much
trouble,    time, and expense for the railroads          to look after
the handling     of baggage at its stations        and to check same for
transportation      from Austin to San Antonio as it is to handle
and check the baggage from Austin to St. Louis or other points
outside   the State.

            We again call attention      to the last sentence       of Sec-
tion 9 of Article     6448 above quoted which provides         that in
addition   to setting    the rates for passenger      fares,  which nec-
essarily   includes   the transportstisn   of 100 pounds of baggage,
the Commission has authority       to prescribe    reasonable    rates,
tolls,   or charges for other services       provided    by the railroads.
Honorable   William   J.   Murray,   Jr.,   Page 7 (WW-1410)


           The views expressed      herein are in line with Opinion
No. O-6587 of this office     dated June 13, 1945, which held that
under the provisions     of Section    9 of Article     6448 authorizing
the Commission to prescribe       reasonable    rates,    tolls, or charges
for "all  other services',    the Commissi.on may prescribe         reason-
able charges   in excess of the,maximumfare           of 3 cents provided
for by Article   6416 for the transportation          of passengers    on
special  passenger   cars and special      passenger    trains.

             You are advised  that it Is our opinion         that   your
question    should be answered in the affirmative.

                             SUMMARY


             The Railroad   Commission has authority      to
      authorize   railroads   to assess a charge,    in
      addition   to the fare for transportatfon,       for
      checking   and handling   baggage of a passenger.

                                       Very truly   yours,

                                       WILL WILSON




HGC:dsd


APPROVED:

OPINION COMMITTEE

W. V. Geppeat,    Chairman
Gordon Zuber
Bill  Colburn
W. 0. Shultz

REVIEWEDFOR THE ATTORNEYGNEEXAL
BY: Leonard Passmore
