                                                             Dsrch 13, 1939
                              Aun-     ~~.TEXAS




Honorable James IL Ulday
Mreotor, Motor Transportation Div.
HsrilroadCoumission of Texas
Austin, Texas

Dear Sir:                               opinion No. O-05
                                        Ret Udxility of motor oarrier for
                                        tax and Dlite-fees'during .timehis
                                        oertifioate in litigation.
                                                                   i'.,:
       77sare inreceipt of your request for an opinion'~oon6eming the follow-
iag factsr On Maroh 29,,lQ34, the Brilroad:CdnmbriIon'ps~Wdan order grant-
ing to Wald~Tzrssfer snd Storage Cc&any, Ld.; X o&non b&rier motor oarrier
oertifiats. On the'21st d&y thereafter *:inotion,forrb~hetiing~w     filed by
same partj in the prdoeeding, ud'onDe6muber lQ;.lQ?Xthe C&m~ission passed‘
amorder setting sside.fhe order,of Huoh.29, 1934..'Wd     TAnsferand   Storage
cQnPwY* 'II+, has suooessfullymaintained a suit uphold$ng the ireuauoe~of
the oertifio&e on Xaroh 29;1954; and deolorlag Iirvalid~theorderof Deogn-
her lQ,,l934i Bmitkvi mid Traasfer &'Storage'C&, 97 S&       (2d) 991. errors
dismissedti During l&e ~6%denoy of the suit, a t~DoruyinjtmotA.om protected
lkld Transfer snd Storage Company, Inc., frcm the interferenae'of ths Coumis-
sion. You ask the following question:'.

       *If theCmmuission issues a pennit upon.the original.order referred to
herein,.shouldthe 8ppLLoant be required to paytax tid plate.fees'forthe
years he has beea operating under sn injunction, since the ihsuenoe of said
order, or should ue only aollsot for the period from date of the mt     to
be issued to&s end of the our-rentfiscal year, as is the usuaLcustom uhen
a permit is fssued?'

       ArfAole 9116; Sec. 17(A), reads in part is followsr

~"Forthe purpose of defray%ng the e-se    of &dministering this’~Aot,~ev&~~’
conunonoarrier motor ourier now regularly operating,~or which shall herei,~
after regularly opetite in this &ate, shall'& the time of ~the issua&e-of
a ~ertifloate of oome~eaoe snd.neoessity, unless othirrwiseprovided:here-
in, and nnmully thereafter, On or b&men    September 1st and September 15tb
of each orlendnr year, pry r'speoial fee of Ten~(#lQAO) DollUs, for each
motor propelled vehiole operated or to~be oper+ted by suoh motor ~tirrierin
the carriage of properbyc Yf the certificate of convehienae and neaeseity
herejn referred to is issued after the month of September of~auy year, the
fee paid shall be prorated to the .rknainingportion of the year ending
August 31st following, but in no case less than one-fourth (l/4) the snnual
~fee. 6 . .*
Ron. Jsmes E. Kilday - Page 2 (O-05)



       Article Sllb, Sec. 17(o) reads as followsa

"All fees except the fee provided in Section 5 of this Aotaocruing under
the terms of this Aot shall be payable to the State Treasury at Austin and
oredited to a fund tobe known and designated as the W&or Carrier Fund,*
which fund is appropriated for the purpose of carrying out the terms of
this Act, and out of which all warrants end expenditures necessary in aa-
ministering and enforcing this Act shall be paidon

       Article Sllb, Sec. 16, reads in part as follows8

 "It shall be unlavful for any motor oarrier as hereinbefore defined to opz-
 ate any motor vehicle within this State unless there shall be displayed and
 firmly fixed upon the front and rear of such vehicle an identification plate
 to be furnished by the Connnission. o 0 e It shall be the duty of the Ccsmnis-
 sion to provide those plates and each motor vehicle operating inthis State
 shall display such plates as soon as the same are received and suoh plates
 shall be issued prmually thereafter and attaohed to eaoh motor vehiole not
 later than September 1st of eaoh year, or as'soon thereafteras~ possible0
 The Cmmaission shall be authorized to oolleat frcusthe appliaent a fee of
 One~($l.OO) Dollar, for each pair of plates so issued, and all fees for such
'plates,shall bedeposited in the State Treasury to the credit of the 'Motor
 Carrier Fund.1

      "It de&opsd'iq the law suitabove referred to that on Maroh 29,
1934, a valid and enforoeable order, one that has never been set aside,
was entered by the Railroad Ccmmission direotingth~~issuanos of a oertif-
ioate. Section 17(a)'required the payment of a speoial fee thenwad
annueJ.lythereafter on eaoh vehicle operated under-the oerbifioate. The '
erroneous belief on the part of the Conmission that the aider granting the
oerbiflcate had been a& aside, and its failure on that aocount to oolleot
such special fees mxzld not have the effect of discharging Wald Trensfer de
Storage Ccmpsny*s liability therefore The Stats could not be thusly deprived
of fees due kite- The Weld C~pany received all the~privileges of authorised
O-W    carriermotor cat-rim, and not having pafd such speaial fees, still
owes the seme# and it is the duty of the &mmission to colleot the same0
Although a tender of the amount of the indebtedness be made and refused,
suoh unaccepted tender does not discharge the prinoipal obligation,
Hoskins v. Dougherty, 69 S&    1033 Poff v. Kller, 235 S.K 570, 26 R.&L*
648. Since tenders were made. however. ne believe that a prosebution
could not be suocessfully maintained under Article 1690-b of the Penal Code,
which provides a penalty for anyone violating the provisions of Article Qllb.~
Furthermore, sinoe the years for whiah the usual fees were due have passed
without collection of the fees, and under suoh circ~stances whioh excused
the payment of the esme as theyfell due, we do not believe that a forfeiture
of the Wald Ccmpany~s oertifioate could be had for Mlure   to pay the samee
In our opinion, such spsoial fees whioh are due for the period of the in-
junction should be colleoted as a simple debt.
Hon. James E. Eilday - Page 3 (O-05)



       With reference to the fees of one dollar, however, which the
Commission is "authorized" to collect for each pair of license plates
issued, we reaoh a different conclusion. That fee is a small one,,
evidently intended to result in no profit to the State, l&merely to
defray the actual expense incurred by the State in making or obtaining
and issuing the plates. If none was issued to~the Hald Company during
the period of the injunction, then no expense was caused to the State in
this regard* Our conolusion is that the Coxnission is not entitled to
collect from ?Wd Transfer end Storage Company, Inc.,,plate fees for the
time inquired about.

                                          Yours wry truly

                                       ATTORNEY GEWRAL   OF TEXAS

                                       By /s/Glenn   R. Lswis

                                             Glenn R. iewis
                                                 Assistant



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