Hon. C F. Petet, Secretary
Railroad Commission of Texas
Austin, Texas

                                  Opinion No. 0-1688

                                  Re:   The Railroad Commission of
                                        Texas Is authorized to see
                                        that Article 6370 is com-
                                        plied with, and may, In
                                        its discretion, require
                                        the erection of luminous
Dear Mr. Petet:                         signs.

          We acknowledge receipt of your opinion request of Novem-
ber 13, 1939, propounding some six questions with subsections re-
garding the power of the Railroad Commission. Your letter reads
tn part as,follows:

          "Some railroads have old, wooden, unlighted
     signs purportedly warning users of vehicles of the
     nearness of tracks--such signs being located at
     or near places where streets or highways intersect
     railroad tracks; and, at one of these intersections
     at least, there was a recent fatal accident in
     which three young people were killed.

          "We request an opinion on the following quections:

          "FIRS?: Does this Commission have the power
     to enter and enforce a blanket general order re-
     quiring all rail carriers to install at all such
     crossings illuminous sigas composed of a series
     of buttons which shine at night when automobiles
     approach them in such fashion as to warn approach-
     ing vehicular traffic that a rail crossing is ahead
     of such approaching traffic; and, if so, may such
     order be entered without notice and hearing?

         "SECOND: If such general order may not be
     enforced, then may an order be entered applicable
     to a given crossing or to given crossings; and,
     if so, may such order be entered without notice
     and hearing?
Hon. C. F. Petet, Page 2 (0-1688)



          'THIRD: Do each of such orders, if any be
     possible, necessarily require notice and hearing
     and must the order be based upon a factual basis
     established by the evidence at such hearing, if
     any?



          "FIFTH: Assuming that the Commission should
     decide against such illuminous signs of the but-
     ton type then we ask the same questions as those
     above (a) with respect to the ordering of the in-
     stallation and use, in lieu thereof, of automatic
     bells ringing concurrently with the swinging of
     a sign latitudinally with the street or highway,
     (b) with respect to the ordering of the installa-
     tion of automatic bells without the winging signs,
     (c) swinging signs without the use of bells, and
     (d) with respect to ordering of the construction
     and use of underpasses or overpasses."

          It is fundamental that the Railroad Commission of Texas
has only powers expressly granted to It by statute, and impliedly
may exercise only such powers as are necessary in the exercise
of those expressly granted. Railroad Commission of Texas vs.
Red Arrow Freight Lines, 96 S.W. (2d) 735. Article 6370, styled
"Signs at Crossroads" reads as follows:

          "Such corporation shall erect at all points
     where its road shall cross any first or second
     class public road, at a sufficient elevation from
     such public road to admit of the free passage of
     vehicles of every kind, a sign with large and dis-
     tinct letters placed thereon, to give notice of
     the proximity of the railroad, and warn persons
     of the necessity of looking out for the cars; and
     any company neglecting or refusing to erect such
     signs shall be liable in damages for all injuries
     occurring to persons or property from such neglect
     or refusal. (P.D. 4890)”

          Article 6448 provides in part as follows:

          "The Commission shall: ... See that all laws
     of this State concerning railroads are enforced..."

          It may be seen, therefore, that Ai-ticle’6370 makes it
mandatory on the railroads to erect at places where they cross
first or second class public roads signs with large and distinct
Hon. C. F. Petet, Page 3 (O-1688)



letters to give notice and warning of the proximity of the cross-
ings, and Article 6448 makes it the duty of the Railroad Commis-
sion to see that Article 6370 ii complied with. It is within
the discretion of the Commission to determine what type of sign
comes within the classification set up by the Legislature in
Article 6370. The Commission could, within its discretion, find
that, because of the speed of present-day traffic, ordinary let-
tering on signs is not distinct at night so as to warn present-
day motorists of the proximity of a railroad crossing. The Com-
mission could also find that signs at least as visible as the
proposed luminous button signs are now necessary to fit the leg-
islative classification that the signs be distinct enough to warn
the traveling public.

          If the Commission should promulgate an order requiring
the erection of the type of signs proposed herein, said order
would have to provide that the luminous button type sign wa6 the
minimum standard of visibility for such railroad signs. In other
words, the Commission could not require a railroad which had put
up a large electric light sign, one concededly more visible and
more desirable than the type proposed herein, to tear down such
sign and put up one of the luminous button variety. The general
order of the Commission would have to set up a minimum standard,
rather than be a blanket order requiring all crossings to have
a particular type of sign.

          The situation about which we are concerned here is
analogous, we believe, to the situation which confronted the San
Antonio Court of Civil Appeals in the case of San Antonio & A.P.
Ry. CO. v. Railroad Commission of Texas, 275 S.W. 261.  In the
San Antonio case an attack was made against an order of the Rail-
road Commission which order required the Railroad Company to move
the location of one of its depots. In discussing the authority
of the Commission to promulgate such an order the Court said as
follows:

          "Subdivision 12 of article 6654 and Article 6693, R.S.
     1911, provide that railroad companies shall provide and
     maintain at their several stations adequate, comfortable,
     and clean depots and depot buildings for their passengers,
     with separate apartments for white and negro passengers;
     and that they shall keep and maintain adequate and suit-
     able freight depots and buildings for receiving, handling,
     storing, and delivering freight handled by the road. . . .

          "The law required it to be, as a passenger depot, ade-
     quate, comfortable, and clean. As a freight depot it was
     required to be adequate and suitable for receiving, handling
Ron. C. F. Petet, Page 4 (0-1688)



    storing, and delivering freight. The new location was
    not only more easily accessible to the people of the
    town by reason of elimination of a stream crossing nec-
    essary in reaching the old depot, but was approximately
    a mile closer to the tom.   Both of these facts the
    railroad commission was entitled to consider in determin-
    ing whether such depot met the requirements of the law
    that it should be adequate and suitable to the use of
    those who patronized the road. These provisions of the
    law were not intended to apply merely to the character
    of the building maintained. Certainly it could not be
    said that a depot building, meeting all other require-
    ments of the law, but located in a swamp, on a precipice,
    or in some other inaccessible place, was either adequate
    or suitable to the public u&contemplated by these pro-
    visions of the statute. Clearly It was within the power
    of the commission to require, within reasonable limita-
    tions, the railway company to repair, remodel, or expand
    its depot to meet the general requirements of the law,
    or, if necessary to do'so, to tear down the old building
    and erect a new one. And if, within such reasonable
    limitations, in order tommake such depot adequate and
    suitable for the purposes for which it was built;,and;.
    in order to serve the people of Center Point, it was
    necessary to move it approximately 4,000 feet from its
    old location, we think the Railroad Commission had au-
    thority to require the railway company to do so under
    the articles of the statute above cited, ..."

          In discussing the authority of the Commission generally,
the Court stated as follows:

          "It is clear and well settled that the Railroad
     Commission is the agency created by the Legislature,
     not only to see that the laws regulating the'opera-
     tion of railroads are enforced, but likewise to make
     such reasonable regulations, orders, and rules, in
     the public interest, as may be necessary to compel
     such railroads to comply~with and carry out the gen-
     eral provisions and requirements of the laws in their
     application to particular cases. Its power and author-
     ity is derived from the Constitution and the statutes,
     it is true, but of necessity the commission is vested
     in its functioning, with large discretion in applying
     the general provisions of the law to the concrete facts
     of a particular case. And, so long as their orders,
     rules, and regulations are designed,to carry out the
     spirit and purpose of,the statutes, they should be up-
     held, unless clearly so arbitrary and unreasonable as
     to impose an unfair burden upon the railroad company
     involved."
.   -




        Hon. C. F. Petet, Page 5 (0-1688)



                  It is the opinion of this department, therefore, that the
        Railroad Commission has the duty to see that Article 6370 is com-
        plied with, and may in its discretion promulgate the type of order
        discussed herein concerning railroad crossing signs.

                  Because of our.answer to your question No. 1, it is un-
        neces6ary:t.oanswer your question No. 2.

                  We do not,perceive anything in the statutes upon which
        the Railroad Commission could predicate an authority impliedly
        or otherwise to issue an order requiring railroad6 to purchase
        or install safety devices not,called for by the above-quoted stat-,,
        ute. Accordingly, in response to your fifth question, should the
        Railroad Commission decide against the use of luminous signs it
        is our belief that it does not have the authority to require the
        installation in lieu thereof of automatic bells with or without
        swinging signs or the use of swinging signs without the bells,
        nor does it have the authority to require the construction and
        use of underpasses or overpasses.

                  You ask in the latter part of your first question, "may
        such order be entered without notice and hearing?" It is ourbe-
        lief that the Railroad Commission may without notice and hearing
        issue a blanket general order requiring all rail carriers to in-
        stall at all railroad crossings signs at least as visible as those
        composed of a series of buttons which ,shineat night when automo-
        biles approach them in such fashion as to warn approaching vehicu-
        lar traffic that a rail crossing is ahead of such approaching traf-
        fic. Inasmuch as there is no statutory requirement for notice
        and hearing in respect to such an order, it is our belief that
        the case of Greer v. Railroad Commission of Texas, et al, 117 S.W.
        (2d) 142 (error dismissed), is controlling. We quote from that
        case as follows:

                  "There is no compelling inherent reason why
             notice and hearing,should be required as prerequi-
             site to the validity of general rules and regula-
             tions of administrative boards... The intimate
             knowledge possessed by the Commission, ... affords
             ample baSiB for dispensing with notice when general
             regulatory orders are.concerned. .The wide variety
             of highway and traffic conditions may call for ex-
             ceptions as regards given localities, particular
             classes of commodities or carriers, or even indi-
             vidual carriers. It would not be practical to
             consider all of these special cases in the promul-
             gation of general regulations... Had the legisla-
             ture intended that notice and hearing should be
             had in cases of general orders, it could easily
Hon. C. F. Petet, Page 6 (d-1688)



     have so provided. Its absence in this regard,
     and Its presence in the specifically enumerated
     CaBeB, clearly indicate that in the former it WaB
     not deemed essential."

          Regarding the question of notice and hearing, this De-
partment has previously, in two opinions, expressed the opinion
that in respect to Buch general matters as this no notice and hear-
ing need be had. Opinion No. 0-1506, dated October 2, 1939, re-
garding the necessity for notice and hearing for the issuance of
orders pursuant to the Gas Utilities Act, Article 6056. And opin-
ion No. Q-1107, dated August 23, 1939, regarding the same question
arising under the Motor Transportation Act.

          Your fourth question reads as follows:

          "FOURTH. Assuming that Bomeof such CroBB-
     ings are located within the limits of incorporated
     cities and towns (some home rule and some operat-
     ing under general laws) what effect does such
     aBBI.IJIEd
             fact have on the jurisdiction of this COW
     mission with respect to such signs (a) where the
     city fails or refuses to act (b) where the city
     acts but not to the extent desired by this Commis-
     sion (c) where the city resists the activities of
     the Commission and (d) where the city is passive,
     inactive and non-commital?"

          Your attention is called to the fact that Article 6370,~
supra, is specifically limited in its application to places where
railroads CroBB'firBt and second class roads. The ClaSBifiCatiOn
of roads is set up in Article 6704 of the Revised Civil Statutes
of 1925, as amended, which article reads in part as fOllOWB:

          "The Commissioners Court shall classify all
     public roads in their counties as follows:

          "1. First class roads shall be clear of all
     ObBtrWtionS, and not less than forty (40) feet
     nor more than one hundred (100) feet wide; all
     stumps over six (6) inches in diameter shall be
     cut down to six (6) inches of the surface and
     rounded off, and all stumps six (6) inches in
     diameter and under, cut smooth with the ground,
     and all CaUBemyS   made at least sixteen (16) feet
     wide, no first or second class road shall be re-
     duced to a lower ClaBB.
.




    Hon. C. F. Petet, Page 7 (0-1688)



              "2. Se,condclass roads shall conform to the
         requirements of first class roads except that
         they shall be not less than forty (40) feet wide.

              "3. .Third class roads shall not be iem
         than twenty (20) feet wide and the causeway not
         less t.w twelve,(l.2)feet wide; otheirise they
         shall conformto the requirements of first class
         roads."

              We also call you~rattention to the following articles
    of the Revised Civil Statutes of 1925:

              Article 1016:

              "Any incorporated city or town containing
         not more than five thousand population in this
         State shall have the exclusive control and power
         over the streets, alleys, and public grounds and
         highways of the city, . . .",

              Article 1146:
              II. . .

              "2. Have and exercise exclusive control over
         the streets, alleys and other public places within
         the corporate limits; provided, that with the
         consent of the board of aldermen, where streets
         are continuations of public roads, the commis-
         sioners court shall have power to construct
         bridges and other improvements thereon which
         facilitate the practicability of travel on said
         streets.
              11
               . . .11

              Article 1175:

              "Cities adopting the charter or amendment
         hereunder shall haVe full power'of local self-
         government, and among the other powers that may
         be exercised by any such city the following are
         hereby enumerated for greater certainty: . . .

              "16. To have exclusive dominion, control,
         and jurisdiction in, over and under the public
         streets, avenues, al&e,ys,highways and boule-
         vards, . . ."
Hon. C. F. Petet, Page 8 (O-1688)



          Article 1175 is's part of the chapter of our statutes
entitled "Home Rule .II You are advised that any cities coming under
the application of either of the above quoted articles have exclu-
sive jurisdiction over their streets and roads, and the Railroad
Commission would be unauthorized to promulgate any order which
would interfere with BUch exclusive jurisdiction. This principle
was affirmed by the Beaumont Court of Civil Appeals in the case
of Fletcher v. Bordelon, 56 S. W. (2d) 313, writ of error refused.
The Court stated as follows:

          "The streets of cities are public highways,
     and under the primary control of the Legislature.
     The Home Rule Amendment to the State Constitution,
     article 11, Sec. 5, and article 1165 (l&a), R.
     S. 1925, which is the emended Constitution enact-
     ed into statutory form, togetherwith article
     1175 (1096d), R.S. 1925, a portion of what is
     known as its Enabling Act, confer upon cities
     full power of self-government, and delegate to
     cities operating under the Hams Rule Amendments
     all power the Legislature had to control their
     streets, and to regulate traffic thereon. In
     addition to the provisions in the charter, the
     city could exercise all such authority in the
     control of its streets and the regulationof the
     use thereof as is granted by General Law."

          While it might reasonably be contended that such an order
of the Railroad Commission concerning railroad crossing signs would
not be an unreasonable interference with a city's exclusive control
over its streets, the above quoted statutes which grant the exclu-
sive control to the cities over their streets have the effect of
removing said streets from the category of "first or second ClaSB
roads." The Beaumont Court of Civil Appeals in the case of Williams
v. Carroll, 182 S. W. 29, stated a8 follows:

          "In common usage, the term 'road' denotes
     a township or county highway. The road act, giv-
     ing an action to any person damaged by means of
     insufficiency or want of repairs of any public
     roads of any of,the townships of the state, has
     no application to an accident occurring in con-
     sequence of municipal streets in an incorporated
     municipality being out of order. Carter v. City
     of Rahway, 55 N. J. Law, 177, 26 Atl. 96.

          "From theBe authorities it may be fairly
     deducible that a 'street', as that term iB used,
     generally means a passageway within the bounds
-   . .   .




              Hon. C. F. Petet, Page 9 (0-1688)



                   of a municipal corporation, and that the word
                    'road' means a county highway forming a communi-
                   cation between the city limits of one city or
                   town and the city limits of another city or town.
                   That this is the meaning of the word 'streets,'
                   as the same appears in the Constitution, is
                   evident from the ~fact that the legislative body
                   of Texas, in dealing with a division of jurisdic-
                   tion over the public highways of the state, in
                   article 854, Vernon's Sayles' TaxaB Civil Stat-
                   utes, gives such.incorporated cities or towns
                   the exclusive control and power over their streets,
                   alleys, grounds, and highways and to that end
                   grants them power to open, alter, widen, extend,
                   establish, regulate, grade, clean, and otherwise
                   improve the streets. : W .'

                        This case was'later reVerBed by the Supreme Court of
              Texas but on another ground.

                        Your attention is again called to the fact that Article
              6370, supra, is expressly limited to crossings of first and second
              class roads. You are therefore advised that Article 6370 would
              not apply to railroad crossings in towns incorporated under the
              above discussed provisions. This would preclude the Commission's
              authority in the matter.

                        Your sixth question reads as fOllOWB:

                        "SIXTH: DO~B this'Commissionin each in-
                   stance have the power to place the .entireexpense
                   of each installation, regardk!BS of which device
                   is reBort.edto, 'on the carrier involved or must
                   the expense be divided on a prorata basis between
                   the carrier and the Highway Department, when the
                   crossing is without a city's limits or between
                   the carrier and the city where the crossing is
                   within a city's limits -- such a division, if any,
                   to be upon a reasonable and equitable basis bottomed
                   on a factual ground to be found in the testimony
                   and in other facts of which the Commission may prop-
                   erly take notice?"

                        In response thereto your attention is called to the por-
              tion of Article 6370 which reads as follows:

                        “Such corporation shall erect. . .'
                                                                      -   .   .   I




Hon. C. F. Petet, Page 10 (0-1688)



          You are therefore advised that said article re+ireB
the railroad corporation to erect the sign. It would have to do
so at its owu expense.

          We trust that the foregoing discussion will be sufficient
to enlighten you as to the authority of the Railroad Commission in
this matter.

                                            Yours very truly

                                       All'OPJ4EY
                                                GENERALOFTEEAS


                                       By   /B/ Billy Goldberg
                                                Billy Goldberg
                                                     Assistant

BG:JXIM

          APPROVED FEB 29, 1940

          ISI Gerald C. Mann

          ATTORNEY GENERAL OF TEXAS



                                                APPROVED
                                                OPINION
                                               coMMmm

                                               BY /s/ BWB
                                                 CHAIRMAN
