                                TEXAS




Honorable C. F. P&et
Secretary
Railroad Wnmission
Austin, Texas

Dear   Mr.   Pet&:              opinion No. 3-76
                                Re:    Jurisdiction of Railroad Commission,
                                       in connection with Southern Pacific
                                       Lines' Discontinuing Trains 11 and
                                      .I.2through El Paso and to the Texas-
                                      New Mexico State  Line

This office is in receipt of your letter of Januarg 10, 1939, advising
that Fo February, 1938, the Southern Pacific Company discontinued the
operation of two trains Nos. 11 and l.2,which prior thereto went
through El Paso to the Texas-New Mexico State line. You are advised and
ask us to assume that all of the business handled by those two trains
was interstate business. The Southern Pacific Company did not obtain
the permission of the Railroad Commission of Texas to so discontinue
the use of said trains, and you ask an opinion as to whether the
Railroad Commission has jurisdiction such as to make such permission
necessary.

Congresshas undertaken in the passage of the Interstate Commerce Act
to regulate the operation of passenger trains and freight trains engaged
in the handling of interstate business. Showing in part the regulations
thus made. we quote from Section 1, Title 49, U. S. C. A., Chapter 1,
as follows:

       "(1) The provisions of this chapter shall apply to common
       carriers engaged in-

       (a) The transportation of passengers or property wholly by
       railroad, or partly by m+lroad and partly by water when both
       are used under a common control, management, or arrangement
       for a continuous carriage or shipment; or

       (c) The transmission of intelligence by wire or wireless
       from one State or Territory of the United States, or the
       District of Columbia, to any other State or Territory of the
       United States, or the District of Columbia, or from one place
       in a Territory to another place in the same Territory, or
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                                 ,,     .,


Han   C. F. Petet   January 12, 1939, Page 2   0 ~-76



      from any place in the United States through a foreign
      country to any other place in the United States, or
      from or to any place in the United States to or from a
      foreign country, but only in so far as such transportation
      or transmission takes place within the United States.

      (10) The term 'car service' in this part shall include the
      me, control, supply, movement. distribution, exchange,
      interchange, and return of locomotives, cars and other
      vehicles used in the transportation of property, including
      special types of equipment, and the supply of trains. by
      any carrier by railroad subject to this part.

      (11) It shall be the duty of every carrier by railroad
      subject to this part to furnish safe and adequate car
      service and to establish, observe, and enforce just and
      reasonable rules, regulations, and practices with respect
      to car service; and every unjust and unreasonable rule
      regulation, and practice with respect to car service is
      prohibited and declared to be unlawful. . . .

      (13) The Commission is hereby authorized by general or
      special orders to require all carriers by railroad subject
      to this part, or any of them, to file with it from time to
      time their rules and regulations with respect to car,
      service, and ,the:Commission‘may;init.8 discretion, direct
      that such~rules :and regulations shall be incorporated in
      their schedules showing rates, fares, and charges for
      transportation, and be subject to any or all of the pro-
      visions of this part relating thereto.

      (14) The Commission may, after hearing,on a complaint or
      upon its own initiative without complaint, establish
      reasonable rules, regulations, and practices with respect
      to car service by carriers by railroad subject to this part,
      including the compensation to be paid for the use of any
      locomotive, car, or other vehicle not owned by the carrier
      using it, and the penalties or other sanctions for
      nonobservance of such rules, regulations, or practices.

      (15) Whenever the Commission is of the opinion that
      shortage of equipment, congestion of traffic, or other
      emergency requiring immediate action exists in any section
      of the country, the Commission shall have, and it is hereby
      given, authority, . . .
Hon. C. F.   Pet&,   Janurary 12, 1939, Page 3   0-76



    (a) To suspend the operation of any or all rules,
    regulations, or practices then established. with respect
    to car service for such time as may be determined by the
    Commission; (b) to make such just and reasonable directions
    with respect to car service without regard to the ownership
    as between carriers of locomotives, cars, and other vehicles,
    during such emergency as in its opinion will best promote
    the service in the interest of the public and the commerce
    of the people, upon such terms of compensation as between
    the carriers as they may agree upon, or, in the event of
    their disamcement, as the Commission may after subsequent
    hearing find to be just and reasonable . . .

     (17) The directions of the Commission as to car service
     and to the matters referred to in paragraphs (15) and (16)
     may made through and by such agents or agencies as the
     Commission shall designate and appoint for that purpose.
     It shall be the duty of all carriers by railroad subject
     to this part, and of their officers, agents, and employees,
     to obey strictly and conform promptly to such orders or
     directions of the Commission, and in case of failure or
     refusal on the part of any carrier, receiver, or operating
     trustee to comply with any such order or direction such
     carrier, receiver, or trustee shall be liable to a penalty
     of not less than $100 nor more than $500 for each such
     offense and $50 for each and every day of the continuance
     of such offense, which shall accure to the United States
     and may be recovered in a civil action brought by the
     United States: Provided, however, that nothing in this part
     shall impair or affect the right of a State, in the exercise
     of its police power, to require just and reasonable frei@t
     and passenger service for intrastate business, except in so
     far as such requirement is inconsistent with any lawful
     order of the Commission made under the provisions of this
     part. . .

     (21) The Commission may, after hearing, in a proceeding
     upon complaint or upon its own initiative without complaint,
     authorize or require by order any carrier by railroad
     subject to this part, party to such preceeding, to provide
     itself with safe and adequate facilities for performing
     as a common carrier its car service as that term is used
     in this part, and to extend its line or lines:"

It is thus noted that for State regulation, there was left only intrastate
business, and even that is curtailed by the requirement that no State
regulation shall be inconsistent with any lawful order of the Interstate
Commerce Commission. Par. 17 above.
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Hon. C. F. Petet, January 23, 1939,Page 4   o-76



In Atlantic Coast Line R. Co. v. State, 143 So. 255, the Supreme Court
of Florida held that the State Railroad Commission could not enforce
continued operation of an interstate passenger train carrying intrastate
passengers. It was further held that if :dfscontinuance of the train
would render service to intrastate business insufficient, the State
Railroad Commission could require the rendition of sufficient service,
not by requiring continued operation of the interstate train, but by
requiring the carrier to supply proper facilities between intrastate
points.

In Transit Corn.Co. v. U. S., 53 S. C. 536, 289 U. S. 121 77 L. Ed.
1075, it was held that on taking effect of this Act, a State Commission
was stripped of its power to prescribe terms for joint operation of
railroad tracks under a trackage agreement, and thereafter authority
of the Interstate Commerce Commission became paramount and exclusive.

In Louisville & N. R. Co.v. Eubank, 184, U. S. 27, The United States
Supreme Court held unconstitutional a provision of the Kentucky
Constitution which attempted to prohibit common carriers from charging
more for a shorter than for a longer haul, so far as its provisions
extended to a long haul from a place outside of the one inside of the
State, and a shorter haul between points on the same line and in the
same direction, both of which are within the State, as the carrier is
thus compelled to adjust, regulate or fix his interstate rates with
some reference to his rates within the State.

Quotation is from the opinion of the Supreme Court of Illinois, in
People vs. 111. C. R. Co., 324 111. 591. 51 A. L. R. 1236, certiorari
denied, 48 S. C. 37, as follows:

     "The complete and paramount power of Congress to regulate
     interstate commerce is well established. By virtue of the
     comprehensive terms of the constitutional grant of power
     the authority of Congrem is adequate to meet the varying
     exigencies that arise rnd to protect the national interest
     by securing the freedom-of interstate commercial intercourse
     from local control. Houston, E. &W. T. R. Co. v. United,
     States, 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep.
     833: Gibbons v. Ogden, 9 Wheat, 1, 6 L ed. 23; Brown v.
     Maryland, 12 Wheat. 419, 6 L. ed. 678; Minnesota Rate
     Cases( Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48
     L. R. A. (m. 5.) 1151, 33 Sup. ct. Rep. 729, Ann. Cas. 1916.4,
     18."

Holding that Congress has the power to control theintrastate rates main-
tained by a carrier under State authority to the extent necessary to
remove the resulting discrimination against interstate commerce arising
out of the relation between such intrastate rates and interstate rates
which are reasonable in themsolves, the Supreme Court in H. E. & W. T.
R. Co. v. U. S., 234 U. S.Y342, said in part:
Hon. C. F. Petet,Jsnuary 23,.1939, Page 5,      O-76



     "The fact that carriers are instruments of intrastate commerce,
     as well as of -interstatecommerce, does not derogate from
     the complete and paramount authority of Congress over the
     latter, or preclude the Federal power from being exerted to
     prevent the intrastate operations of such carriers from
     being made a means of injury to that which has been confided
     to Federal care. Wherever the interstate and intrastate
     transactions of carriers are so related that the government
     of the one involves the control of the other, it is Congress,
     and not the state, that is entitled to prescribe (352) the
     final and dominant rule, for otherwise Congress would be
     denied the exercise of its constitutional authority, and'
     the state, and not the nation, would be supreme within the
     national field."

Under the facts which you submit to us, the trains carried interstate
business only. In our opinion the Railroad Commission of Texas was
without jurisdiction to take any action in the premises. This.
is likewise true, even though the two trains in question carried
a mixture of intrastate and interstate business.

                                   Yours very   truly,

                             AlTORNEX GRRRRAL OFTEXAS

                             s/ Glenn R. Lewis



                             BY
                                  Glenn R. Lewis
                                       Assistant

GRL:IV/ldw

APPROVED
s/ Gerald C. Mann
ATTORNEX GRRRRAL OF TEXAS
