OFFICE OF THE AITORNEY GENERAL OF TEXAS
AUSTIN
-a-
-a-
Honorable Len d. Snlth, Chairman
Reilroed Codsslon of Texas
NlatLIl, Texas
Deer sir:
This Is In enswe
in regard to ,wtiole 6479,
Statutes or nmis. your Is ert 68 tollovJs:
vnder date or J the rronorable
trtktion of
Revised Civil
unded to hln
ioeble on a oer-
road provides POT
und on ona day and
e fulfill the tiinlmm requirements,
mice, of Subdivision 2 of ~rtiole
-In the opinion above mentioned, the.kttorney
Caneral ruled *that the wwds *at least one train
e dep, a6 used in Subdivision 2 of krtiale 6479,
meag None train a day each way.“(
*. . ., we have before us a schedule appli-
ceble on a railroad branah line whloh provides iOr
northbound passenger aertioo over the entire branoh
I-Ion. Lou A, Smith; Chairman, page 2
on Mondays, Kednesdays and~yridays, and south-
bound passenger service over the entire ‘branoh
on TEesdays, Thursdays and Saturdays1 and which
does not provide for any southbound passeqer
service on Mondays, Redneedays and Fridays, or.
any northbound passenger service on Tuesdays,
Thursdays and Saturdays.
‘Your opinion is requested as to whether
peskenger service so provided Is suffioient to
aeet the minimum requIre%ents of atlale 6479
of the Revised Civil Statutes, &a avended.”
The statute involved In this question is Section 2 of &tIols
6479, which reed8 as followsr
*It shall be the duty of the cozmission to
6ee thst upon each railroads In this State carry-
ing passengers roti hire thcru shell be run at
.leest one traIn,each day, Sundays exoepted,~$.on
which passengers stall be hauled; pmvided, how-
ever, the Comission my, ti its discretion,
upon application filed and after notice ahd hear- . . ..( -.,;..:‘>:.;.:
ing, relax such requirement aa to any reilrozld,
nor part, portion or brsnoh thereof, when In its
opinion, publio oonvanienou perfits of such re-
laxation, nnd shall relax such roquirment when
it appears upon such hearing that tha ruming of
one train each day, Smdays exoapted, is not
necessary In the rendition ol adequate stirvice to
the publla, OP that on any railroad, or part, or
portion or branch thereof, passenger service as
frequent as one traiil aaah day, Sundays exaepted,
with the passeu;.;sr traffic OPllared and reasonably
to be expected, does rot and will not say the
cost of suah sarvioe plus a reasonable return a?-
on the property ezploynd In the rendition of auoh
servioe; and Co~~A.ssIon shall LPurt,!:er zegiilrlute
passenger train service so as to rw~uira i;t?e
stoppaa,;e. of. suoh trains, for a time mfficient to
receive and let orf pzsseneors, at such St&Ions
8s my be desimzted by the COZIdSSiOn; tird It
nny further prescribe the nuder of trr:En so
operated ezch day which shall be re~>ircd to Stop
at County seat stations; and if ouch railroad,
or braaah of same shall operete a g&olIua or
electric motor car over Its line, carryI.nS pas-
aengers Por hire In this State, such motor Car
ffon, Len A+ smith, Chaiman,.psge 3
shall be deemed a train Hithin the moanIn&of
this Article and shall be subjeot to and includ-
ed within the provisions hereof.” (UhdersoorIng
ours)
The question we are asked to deoide Is whether the
phrase net least one train each dapn means only one train a
day One w&y or means om truin a day eeoh way.
fn 1931, when Attorney Oeneral hllredcs opinion
(by Assistaut iLlbert Rooper, January 17, 19X), to :&Ich you
p6fer, was written, the statute in qwstion read us follows;
*Tt shall be the duty of the CosmIssioners
to see that, upon every Railroad branch of sam,
aarry!.5g passeAngera for hire in this State, shall
be run at least one train e day, Sundays excepted,
upon whioh passeh+;urs shall be hauled, and the
Co&sIoners shell 03ve no ‘power to relax this
rovislon; provided, however,. the ComlsB1on my,
Pn its discretion, relax such requir=ent as to
any reilrosl in this State less than fifty tiles
in length and the gross annual passengai revoaue8
-of which ere lessthan $SSOO.COl end said Coanis-
sion shall further re&te passenger train sbr-
doe to stop for R tI.me sllffioient to receive and
let off pcsmngora at such stations es xay be
desI@ated by the Comla~loner; provide6 that
So-z trains saoh way, carry- gaosen@rs for
hire, S.f so !xmy em run dnily, Sundays excogtod,
be required to stag as aforesaid at all oouuty
seat stations J ad If ouch rtiI.lroad or brtrrroh of
tmne shall operate a gasolIn& or .olectrIo notor
ear over Its line carrying passengers f.>r hIro
in this State, suoh motor oar shall be deewd~ R
train -wIthIn the meaning of this Article and
shall be subject to and included within the re-
qulrenants the.t at least be ruu every day, Sun-
days excepted, s.nd the requiremnt r;ndo by the
ComuIesIoaers as to stoppii~g for a the StdTI-
oient to receive and-let off gassungers at dasIg-
neted stations ,w
&torneg Oeneral iillsedgs opinion held that the worda *at
least one train a day” meant omz train a drig eaoh Way; and
erter oiting sev6ral authorities on statutory construction,
the opinion contained language as follows;
HOIon.LOn A. %ith, ChaIrman, page 6
a railroad Op8rathg o&Such a Sohedale prould
be running a train only every other day, and in
violation of,.;rtl~le 6479, '5s wall as irtlalo
6357. Treating the two Statutes prospect1vel.y
i and 6ivih6 efl'eot to bath, railroads are reaulrod
by their ter;ns to operate a trsln a day oath way
la order thtiit all passengers and i'roight *my be
6oeomodated. That these two Articles Should be
construad toc.e$her is Supported by the oaS% of
Raikoad Co~vnission of 'Iex4s, et al vs. Galveston,
H. ES. A. Ry. Coi, lJ.2 9. 71. 345, 349.'
ae are frank to say that if tha question were an
open one we might reach a different con~oluslon from that
stated in :,ttornoy Ceceral Allred* opinion, but in view ot
that opinion aud what has transpired since it was written
.we do not feel inclined to ~0vcrruJ.e .it.~
We are advised that the Rallroad Co;cmission oi
Texas has followed that opinion, that it has beeh uniformly
acquiesced in by the railroad compahles, and that it has
been considered the law by all persons comemcd, cantlnu-
ously since it has been written. Tn.ths GaSe of ~hoorlpanv.
Terrell, Co;lptroller, 109 Ter. 173, 202 3, W. 727, the su-
preme Court of Tcras said:
~a#ain, aouhd publio policy recjulras .tha
sol&g of xaere doubtn in Savor of ths coxmruo-
tion put upon laws by the departments and ofSi-
uers charged with their administration, . . .-
It will be notl$aU that the Statute in question
now reads dlXerently, partioularly ln the last part of the
paragraph, fron the way it read in lF31 when jdttorhey Gen-
eral ;rllred*s opinion was writ&e&. Yhe chon6e WAS SLsdo in
1933 by Senate sill 331, Gh, 111, 43rd Legislature. The
part Y;B are concerned with waS not ohahicged except that the
words, "at least one Grain u.da~~* were chcz;cd to *at least
one train each day", but we believe that ehnn::9 1s immaterial.
The material chances viere in,the latter part of the paragraph
after the word *provided."
Wa doue to this conclusion: Pihen the Legislature
amended this,statute In 1933 azI did not .ztorilly cbunse
the part of tho Statute providln.~ for ut loast oze train a
day, Mioh provision had beea previously construed by the
Han* Len A. smith, chairman, gage 6
Attorney Gsneral as meaning one train R day eaoh way and .
enforced to that offoot, we believe the Legislature intand-
ad for that oonstruction to continue to be the law. III the
aase of oxen vb Gates, 119 TSX. 76, 24 3. ‘ri’. (2d) Sal, the
commission of LA~peab said:
“It ~ziust b; presumed that, v&u the ~a&&-
turo psoed the last-nszed statute, it knew the
commissioner of the land office had intersrated
art1010 5526 as not requ:rm the applicant ior
rsinstatemcnt to pay aaorued interest to ths date
OS reinstatement, but only that which was due
under the terms of the contract which was b&in6
reinstated. If the Legislat’ze, by the psxzzgiie
of article 5%lb, cozt:tglated a ohan6e Prom the
method in forceby the land offloe, it would no
doubt have made plain its purpose to change the
ruleot oonstruot~on then be% 4pplied. Not
h4ting a030 SO, it mit bo pra3miad tkt th0
.lox-continued cons truotion .of that department
MB intended to be continued under the provk:ons
OS, the later law.*
the ease of kOXallum t. ~ssoaiatod Z?:etcil Credit Xen, 26
w. - (2d)
.~.Il.5 {reversed on other grounds) the Court of Civil
appeaui et ~ustxn sala:
*Tn the recent case of Odeikv. Gates (Tex.
coti. Apg.) 24 s. w, (Zd) ?181, it ~4s held that
St would be presusmd, aCsent sy~iffc largua6e
in an act azendlrg a doubtful statute vM.ch a
&p.rtmont. of tk. ,ststs government had construBd
in a certain man%ar for 25 years, to be t&e fn-
tention of the Legislature to conttnue the &Fart-
mental constructj.on of the statute.*
yt Ls our opinion, snd you =re so advised, that you
should coztlnue to follow Attorney General .Ured~s opinion
to the elfsot *h&t tka phrase in irticla 6478, R.C.S., saying
*at least one train satoh day* means one train a day euch way,
yours very txulg