Honorable Penrose B. Metcalfe, Chai-
'Honorable Fred Mauritz, Member
Committee on Highways and Motor Traffic
Texas Senate
Gentbemen: opinion NO. o-5165
Re: Whether obedience to Office
of Defense Transportation orders
by truck operators would be a
violation of The Texas Motor
Carrier Act. (V.A.C.S. pllb
and V.R.P.C. 16901.1.)
By letter Senator Meuritz has asked the following questions:
"Attached hereto is a motor vehicle lease form filled
out to cover a possible transaction. Such lease may involve
a longer or shorter period of time.
"Is the fulfillment of this contract a violation of the
Motor Carrier Act of Texas, on the part of either party to
the contract?
"KXAMPLE
"'A' is in the wholesale grocery business, and does
not own any trucks. He leases one or more trucks from 'B'
(who is not a carrier for hire) to be used.wholly in the
transportation of his own merchandise, and under the con-
trol specified in the above mentioned lease contract.
"Is the legality of such a contract in any way af-
fected by the circumstance,that:
" 1. 'A' does own no trucks, or
" 2. 'A' does own a number of trucks,
but finds it necessary to lease
additional trucks to handle
his business.
"'A' is in the wholesale grocery business and own a truck.
He transports a load of merchandise from his place to .deS-
tination 'Y'. Under existing rules issued by the Office
of Defense Transportation, he is not allowed to move an
Texas Senate, Page 2 (o-5165)
empty truck back to his place of business. He is required,
under such regulations, to seek a return load, leasing his
truck to 'another person', who has merchandise to move to
or in the direction of the place of businese from which the
truck moved; hence, the need for leases involving only a
short-term use of truck.
"Is the legality of such a lease made in good faith, and
conforming to OM' regulations, affected by the short per-
iod of time specified in contract?
"Is a short-term lease of this character forbidden by the
Motor Carrier Act of Texas?
"Is the legality of such lease contract affected by the
circumstance that:
1. Lessee ie a shipper who owns no trucks.
2. Lessee is a shipper who owns trucks (private
truck owner) but needs additional equipment.
3. Lessee is a carrier for hire."
By letter of March 29, 1943, Senator Metcalfe, Chairman of
the Senate Committee on Highways and Motor Traffic, wrote us as follows:
"Senator Mauritz, author of S. C. R. No. 23, has
filed with you a question as to whether certain lease
contracts made by certain motor carriers would be in
violation of the Motor Carrier Act. This resolution
has been considered by the Committee on Highways and
Motor Traffic, and an opinion would be appreciated."
The questions will be answered in the light of S. C. R. No.
23 now pending which reads:
"By Mauritz. S. C. R. No. 23.
"(In the Senate.-March 2, 1943, read first time
and referred to Committee on State Affairs; March 2,
1943, rereferred to Committee on Highways and Motor
Traffic; March 17, 1943, reported favorably.)
"SEHATE CONCURRENT RESOLUTION
"BE IT RESOLVED by the Senate of the Legislature of Texas,
the House of Representatives concurring, that
"Whereas the Office of Defense Transportation of
the United States, for the purpose of conserving rubber
and motor equipment, has promulgated General Order O.D.T.
Texas Senate, Page 3 (o-5165)
No. 17 which provides, among other things, in Part 501, Sub-
part K, Section 501.69,as follows:
"'Sec. 501.69. (a) No motor carrier shall operate any
motor truck in over-the-road service unless it 16 loaded to
capacity, except as follows:
"'(2) On and after September 1, 1942, each motor car-
rier and its representatives, including the representatives,
in immediate control a@ pbsseeeion of the truck, shall en-
deavor in good faith prior to its departure from any point
when empty to lease or rent such truck consistent with any
prior commitments involved in the use of said truck en route,
to another person for the transportation of property. . .'
"NOW THEREFORE, BE IT RESOLVED that Chapter 314, General
Laws of the State of Texas, Forty-first Legislature, Regular
Session, and amendments thereto, commonly known as the Motor
Carrier Act of Texas, shall not be construed, for the period
of time that the United States is engaged in war, or the
Federal Government's Orders remain in force as to leasing of
motor vehicles, to mean that it is a violation of said Act
nor any amendment thereof for a private truck owner to lease
or rent his truck to another person in compliance with said.
General Order O.D.T. No. 17, and that where one private
truck owner has leased or rented his truck to another person
in compliance with said General Order 0. D. T. No. 17 and
said truck is used and operated by said lessee, neither the
lessor nor the lessee shall be deemed to have violated said
Motor Carrier Act nor any amendment thereof, and that neither
the lessor nor the lessee in such case shall be deemed to be
a common carrier or contract carrier under said Motor Carrier
Act, as amended, regardless whether under the terms of the
lease contract the lessor does or does not furnish the driver
for the truck and regardless whether the lessor does or does
not agree, in whole or in part, to maintain and service the
truck, provide gas, oil, tires, and pay other expenses nec-
essary to operate the truck while'the same is leased to lessee.
"BE IT FURTHER RESOLVED, That this resolution be published
to the Railroad Commission of Texas, the law enforcement offi-
cers and the Courts of this State."
S. C. R. 23 is written for the praiseworthy and patriotic pur-
pose of preventing the enforcement of the Texas Motor Act in such a way
as to interfere with the order of the Office of Defense Transportation
to save rubber, motor-truckequipment and manpower. However, we believe
that it is written under a misapprehension that the Texas Motor Carrier
Act can conflict with the enforcement of the orders of the Office of
Defense Transportation. In a previous opinion to the Railroad Commission
.
Texas Senate, Page 4 (0-5165)
of Texas, Opinion No. 0-5026,on the question of the right of the army
to have a carrier operate army trucks over highways without a permit
we took the view that whereever the Federal Government in exercise of its
war power directed that things be done in a certain way, that this war
power was superior to the State's police power, and that the Texas Motor
Carrier Act accordingly would be limited in its application so as not
to run athwart any order issued by the Federal Government pursuant to
authorization of Congress. We quote from said opinion:
"Federal War Power is Superior to State
Police Power
"We believe that it is possible to answer this question
by predicating our answer upon the war powers of the federal
government.
"In upholding the right of the United States to take over
and control the railroads in time of war to the exclusion of
any rights of the states therein, Mr. Chief Justice White in
Northern Pacific Railroad Company vs North Dakota, 250 U. S.
135, said:
"'The complete and undivided character of the war power
of the United States is not disputable...
"'The elementary principle that, under the Constitution,
the authority of the government of the United States is para-
mount when exerted as to subjects concerning which it has the
power to control, is indisputable. This being true, it results
that although authority to regulate within a given sphere may
exist in both the United States and in the states, when the
former calls into play constitutional authority within such
general sphere the necessary effect of doing so is, that to
the extent that any conflict arises the state power is limited,
since in case of conflict that which is paramount necessarily
controls that which is subordinate.'
"The powers of congress over intrastate commerce are
plenary when a federal instrumentality or national purpose
is involved.
"In passing upon the same question the New York Court
of Appeals in Public Service Commission vs New York Central
Railroad 129 N. E. 455, said:
"'This action (intrastate rate fixing by a federal
agency) was not justified by any of the ordinary rules of
law. It can be sustained solely as the exercise of the war
powers of the United States. And these powers are not lim-
ited by these ordinary rules. They are not bounded by any
, .. -
Texas Senate, Page 5 (0-51.65)
specific grant of authority. They are not unlike what,
in the states, we call the police power, but the police
power raised to the highest degree. They are such pow-
ers as are essential to preserve the very life of the
nation itself. When requisite to this end the liberty
of the citiien, the protection of private property, the
peacetime rights of the states, must all yield to neces-
sity.'
"The right of the federal government to invade the
peace-time police powers of the State is shown in those
cases upholding its authority to prevent sale of intoxi-
cating liquors in areas about army posts in time of war,
and avering like authority to punish in federal courts
for the maintenance of houses of ill fame in areas about
army posts, notwithstanding said areas are within a state.
In U. S. vs Casey, 247 Fed. 362, in upholding the right of
the Secretary of War to forbid the keeping of a house of
ill fame within five miles of a military camp, the court
said:
11I. 0 .In answer to the argument that the
power to establish the ordinary regulations of
police has been left to the individual states,
and cannot be assumed by the national govern-
ment, it is sufficient to say that the statute
here assailed rests, not upon the police power,
but upon the war power, conferred on Congress
and recognized by the law of nations."'
In case of conflict with the State's police power the federal
war power is paramount thereto and controls. Therefore, our answer to
your questions is that no truck owner, operator, lessor or lessee, wheth-
er or not he has a certificate of public convenience and necessity or
permit of the Railroad Commission, can be subjected to any of the fines
and penalties provided for in the Texas Motor Carrier Act for using his
truck in a particular manner if such action be required of him by a law-
ful order of the 0. D. T., even though such order conflict with the terms
of the Texas Motor Carrier Act.
APPROVED APR 2, 1943 Yours very truly,
/s/ Grover Sellers ATTORNEY GENERAL OF TEXAS
FIRST ASSISTANT APPROVED
ATTORNEY GENERAL OPINION
COMMITTEE By /s/ David W. Heath
David W. Heath
DWH:PM:LM Assistant