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