OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
QCI*U,
0.“ANN
wlmuwameu
Honorable Olin Culberson, Member
Hailroad Cindesion of Texas
Austin, Texas
Dear Sir;
thermlth, refloat the iollowi
in ohroaologioal order.
e8 granted R oortl-
oricing tha oporatlon .
of an lnterrutato rrier ssrrlor WIT
orrtala hl&nye oporato wer the
iollocrfrrg. n6trf.o
aa Antonio over U.S. 81;
llaboro over U.S. 772
0 and Orange over U.S. 901
and olaaswater over U.S. 80.
1936, H. H. Zadorr filed a *grand-
ii the Interatato Commaroe a0mmim0n
r CrrrisrAot. On AprU 10, 1936,
on by due orber.apprwsd the sale and
Owtifloata wore not zwtumed by Tallow Cab, exoept a8 later
aotrb, while it& applfoation b&ore the Interstate Conuueror
j Commlaslon ior the approval oi the purohaes f'ran Enders wa8
D@tiln&. Suberqueatly, oa JUly 3, 1941, the purohase was
-,
r
‘oaorable Olin ~Cultyrsoa, Xeder, Paga 2
approved and the Wgrandtather* rights of Yellow Ceb, suo-
aasaor in fatsrest tii H. H. Enders, were oonflmad by the
btorstats Cowsroe Con14ssfon and Ysllow Cab. vms given au-
thority to operate laterateto wer the Texas highways above
aaBed.
On Daly 28, 1941, Yellou Cab made application to
the RaUroed’Conmlsslon of Texas ror suthorlty to opirate
interstate over these highways. On the 6th day of. Ootober,
194l, the Cdssion granted the application in part but
tied the epplloatloa pertaining to the highways in ques-
In this order the Commlssion,xiade the iollowing
findings*
“TH2 CCWISSIO~ I’UR?L’XZR FINDS from the avl-
a-00 ana its reoords that a portion 0r the high-
ways over *hiah the proposed tratila will mma is
or auoh type ot oonstruatlon sad in suoh state of
repalrs and maintenance as will pernit the addi-
tional traf-Sfio sought to be plaaed thereon by the
appliaant without unreasonably interfering with
the use of the- sa~16 hfgbuays by the general publ.fo
using the 84~ iOr ordinary highway purposes, but
that .&her portions of ,saia highways are not ln
suoh boaaitlon, partl+larly U. S. Rlghway 81 from
Iort Z?orth to San Antonio, U. S. Nghway 77 rr0ln
Callaa to., Mllsboro; 0. S. Highway 90 iron San
Antonlo to Beaumont and U. 9. Eiighway $0 from Dal-
las to Oladewter. That these hfghways tire re-
striated hlghway~ under the ordera .of thie Comls-
slon, and are already aongested by the trarrio
moving over said highway at the prseent time and
that these highprays are already subjeot to auoh
use as wonld not, permit the uso sought to be nado
by the appllaent without unreasonable intertaxtnoa
6th the use of such highway by the germral publia
for highways purposes. Said highways hare heroto-
fore been adjudged congested by the Comissfon and.
heretorore rcstrloted from any edditional use by
aomneraial rehialss far hire.-
In its sroaptions and motion for rehearing to tlm
order of Oatober 8, Yellow Cab asserts that fts applieRtiOB
should be gr‘anted as a mtter of law for the following raa-
sons, among other4 nut pertinent to your request:
(1) That the operating rights Of B. H. &tl@TS
laorwa la 1934 and aooording to the rindlags of the Iat4TSt4t4
? x-able Olin Culberson, JLoaber, Paw 3
CozmsraoComalssion have been kept alive and hate axlsted
sin04 1934 for uhlah reason the Railroad Commi44lon of Texas
should have oonsldared the rights of Yellow Cab under its
ap@liaatlon of July 28, 194l, as or 1934, and ahoula have
reoogaleea the prlorlt of the right of Yellow Cab to operat-
lng r$ghts over said hi @map in preiereuae to those who
ha-d, ~aaqulred operatlng rights therewer subsequent to 1934;
(2) T$at.the granting 0r operating rights over
said hIghway to other oaniers subsequent to 1934, and the
aeB#Bg of operatbq rights OYer suob highways to Yellow Cab,
was dlsorlmInatory.and unreasonable;
(3) That the Ootober 8th order br the T4xas Cm,
ai44lon 14 void in that It repudiates end attempts to nullify
the rindlags and order of the Interstate Comaeroe &sml44lon
whorein it was found and held that TOllOrr Cab was entitled :
to ~granarather* rights over the highways in questlou;
(4) You also reolte that 7eUou Gab aontend that
beoaose or the faot that for a short while they oontinu~d
'ulr operations wer suah hlghwaya wIthout let or hlndranoe
.rom tho.Rallroad Comatleslon that thereby the taalt oonscat
oi the Railroad Comlaslon of Texas was had for the qse .#
these hlghwap ana that thereby inured to them so&i&oharaoter
of rlgbt tat&or the mCrandSather~s alease'. They now assort
that tha I. C. 0. having granted them a petit to do Snter- ".
state business over HIghray 81 that tie Railroad ConmI4sion
fs oatopped from aonilnlng their op4rations to thoee author-
Iua In the Ender csrtlrloate to the rights of whloh they
Eucoeeded.*
You have reqtiested the opinion of this dep&tment
Upon the authority of the Railroad Comlsslon to d&ny the .
applloatIon of Yellow Cob for the reasons stated, and ali
*as done, In the order or Ootober 8, 194l. ln,the light of
the reoIte4 contentions mad8 by the applloant. hnd spol-
fl6ally you have asked thle questlonr ..
. :
*Did the Yellow Cab Tramit Company aaquin
grandfather's rlghta by reason oFtheIr operation
without obstruotlon from the ConuPiasIon ior the
abort time they pursued such operations before
voluntarily abandoning them?*
Ve hare oarsfully studled the oomplrte rile4 sub-
aitted tith your letter ena hare fully intoram ouraelres
xmrable Olia Culbgraon, &a&et, Page 4
upon the unusual and Involved faota surrounding the appli-
eation of Yellow Cab, its proof before the Railroad Comb-
aloa, and the faots regarding the prior granting of other
permlta to other onrrlera under similar oirouaatanoea.
Mlthout reviewing these verlow ooaalderatlona,
auffiee to say that in our opLnion ?ellm Cab la posaeaaed
of no oharaotar of mPandfather* rights in its lnatant ap-
plloatlon before the Rsllroad Ooma.laaloxi of Texas.
It la reooguiaed, of oourae, that for the preteo-
tlon of the hlghuaya and the pub110 safety, the Eallroad
Comniasloa of Texas has the power to withhold permiaaion
ror luteratate operations upon the highwaya 0r Texas, not-
dthatendlng any authority granted by the Interstate Corn-
meroo Cormlaalou. While the granting of a oertlfloate Cc
oonveuleaoe and neoeaalty by the Interstate CommerosCow
alasion removes the question of oonwnienoe end neoeaalty
from the State Comaiaalon, the condition and ability of the
highways of the State to wlthstaud the additional trafiio
involved remains wlth the State Comlsaloa. Southweatom
Greyhouud Linee vs. Railroad Coamlaaion, et al, 99 S. Fp. (2)
263s W&on vs. Thompson, 123 3. W. (21 951; HoDonald va.
Thoapaou, 305 u. s. 263.
As an orlgiaa2~mutt~r,, therefore, the Railroad
Coatmission of Taxa was not bound to grant the rpplloatloa
or Yellow Cab over the highway8 in queatlon If the granting
or the applloatlon would result in weaaonable lnterferenoo
ulth the uae of the hlghwaya by the publla or would aubjeot
the highways to exoaaaive burden.
RI do not believe that this tundamental power or
the Coaalaaiou la destroyed by the conalderetlons lziaullated
upon in the instant applfoatlon.
It is our opluioa that the conflnuatloa of *grand-
father* rights.by the Interstate Comaeroe Cormiaalon unFIer
the Federal Uotor Carrier Aot aa8 eubjeot to the power of
the State Coualaalon to withhold permlaaloa to use the hlgh-
ufiya of the State if the granting of pemlsalon uould result
in unreasonable lnterfersnoe or exoenslve burden.
It la our further opinion that *grandfatharm~righta
finally aatabliehed before the Interstate Coma~srOeCommlaalon
oauuot have the retroaotlve efiept insisted upoh by Yellow
Honorable Olin Culberaoa, Member, Page 5
Cabs in other words; the Railroad Conmlaslon of Texas cannot
determine the validity of aa applloatlon in 19U. by oondi-
tlona exlatlng in 193k.
bioreover, in our opinion, the propoclltlon la un-
tenable that beoauss other appllaatloaa have been granted
over the aame hlghwaya a later applloant nil1 be dlsorlmlmted
against if he is not given ainilar operation rights) other-
wiw the pclnt would never be reaohed at which the State
Conmlasion could exercise its polloe powers ror the proteo-
tion of the traveling pub110 end of the highNaya.
The appliaation at bend, in our opinion, Is aimply
one addreseed to the disoretlon of the Railroad Comlaslon,
If a8 a matter of raot the Commlselon did not sot arbitrarily
in denying the applioation over the hi&maps involved for the
reaaolw stated, aamely, “that these hizghwayaare reatrlated
highpntya under the orders of this Cozmlselon and are already
oongeated by the traffio uovlng over said highways at the
present tlzae and that these highways are already subject to
auoh use as rculd’ not permit the use aought to be made by
the applloant without unreasonable int,errerenoe with the use
of. suoh highways by then general pub110 for highway purposesa,
the notion of the ~C~lsaion is valid. The oonverse la like-
niae true. Thea is a .fatt question to be ocnaldered by tha
Coamlsalon and to be resolved by it in the light of the iaats
existing unfier the applloetioa of Yellow Cab alla othezwlae
properly mlthln then knowledge cf the Comlsslon.
Your6 very truly