Case Information
*1 The Honorable Railroad Commission of Texas
Austin, Texas
Attention: Mr. Commissioner, Ernest 0. Thompson
Mr. Commissioner, Beauford H. Jester Gentlemen: Opinion NO. O-6986
Re: Chief Engineer of the Rail- road Commission-authority of the Commlsaion'to appoint and pay salary of.
This will acknowledge receipt of the Commissioners' letter of December 10, 1945, the pertinent provisions of which are quoted for clarity:
"The Railroad Commlsslon of Texas finds it nec- essary to employ a Chief Engineer of the Railroad Commission and to pay him a salary of $7,750 per year, being the same salary paid the State Highway Engineer, the chief engineer of the State Highway Department, in order that the Oil and Gas Division, as well as the other D,ivisions <of the Railroad Commission may prop- erly discharge the duti'es and responsibilities of the Railroad Commission.
"There is no similar position in the Railroad Commission,
"We propose that this position of Chief Engineer be' set up and the salary paid pursuant to the authority granted by Sub-Paragraph D, Paragraph 14 of Section 2' under General Provisions of the Departmental Appropria- tion Bill of the 49th Legislature, Regular Session. "If there is any other appropriated money or tax money that could also be used to take care of the sal- ary of the proposed Chief F$i$er, we would appreciate your advising us of same,
As a predicate for a correct consideration of and,replg to the Commissioners' inquiry, and to understand the probable scope and importance of the duties of Its Chief Engineer, it is
, The Honorable Railroad Commission of Texas, page 2 believed that it will be helpful to state briefly the authority, powers, duties and responslbilitiea of the Commission. It has been said that the Railroad Commission of Texas is one of the most powerful administra%ive bodies in the United States. The Commission was established April 3, 1891, by the Legislature of Texas, pursuant to Section 30, Article of the Constitution of Texas. Although originally established to regulate railroads, additional duties and responsibilities of a regulatory nature have been imposed upon the Commiaaion, which action of the Leg- islature has been held to be constitutional as against the ob- jection that the Railroad Commission is a constitutional body upon which there cannot be imposed duties foreign to its pur- pose as a Railroad Commission. City of Denison v. Municipal Gas Company (Civ. App.) 257 S.W, 616.
In addition to its regulatory power over railroads,
the Commission has been given extensive regulatory powers over the production of oil and gas, gas utilities, common purchasers of natural gas, operators of pipelines, transportation of oil and gas, express companies, public wharves, docks, piers, ele- vators, warehouses? sheds, tanks, and other property used in connection therewith and the operators thereof. These powers are well known and for the sake of brevity, citation and appli- cable laws is omi%%ed.
The Railroad Commission has been held by the courts
to be a quasi-judicial body. Aransas Harbor Terminal Railway Company v. Taber (Corn. App.) 235 S-W, 841. It has likewise been held by the courts to be a quasi-legislative body, in that it has the power and duty to promlgate and enforce rules and regulations which, if within the limits of the power delegated to it by the Legislature, have %he dignity of legislation. Gulf,$ Colorado and Santa Fe Railway Company v. State, 120 S.W. 1029, error refused. Therefore, the Commission's interpretation of the statutes involved in Its Inquiry is en%itled to great weight.
The Railroad Commission has been given extensive and
ample authority by several general acts of the Legislature to employ personnel necessary to carry out its duties and responai- bllities, which general acts, it IES% be assumed, the Legiala- ture had in mind when it passed the current appropriation bill and in particular made appropriations to the Commission to cover contingent expenses.
In addition to the authority contained in the current appropriation bill refarred to in the Commission's letter, the Commission has the authority to employ sworn experts to inspect and assist it when needed in ascertaining the coat of railways. Article V,A,C.S. 1% has the power to appoint a chief supervisor of its oil and gas division, a chief deputy supervisor, *3 Honorable Railroad Commiaalon of Texas, page
other deputy supervisors and "shall employ such other assistants and clerical help as may be necessary for the same purpose". Article V.A.C.S. Also for the oil and gas division, the Commission is "directed to employ such supervisors . . . and umpires as may be necessary to carry out the provisions of this Act and are related laws and orders, rules and regulations of such commission make thereunder, and it shall etnploy,auch other assistants and clerical help as may be necessary from time to time." Article 604gc, Sec. 23, V.A.C.S.
The Commission may "employ and appoint, from time to time, such experts, assistants, engineers, clerks and other per- sons as it deems necessary to enable it at all times to . . . . inspect all property and records of the utilitiea subject to the provisions hereof, and to perform such other services as may be directed by the Commission under its authority. Such persons and employees of the Commission shell be paid for the services rendered such sums as the Commission may fi~x . . . subject to the approval of the Board of Control." Article V.A,C.S. And it may "appoint from time to time such experts and other help in addition to its present force as may be deemed necessary to enable 1% to at all times properly administer and enforce this Act." Article glla, Sec. 1.6, V.A.C.S., having to do with regulation of motor carriers. In the opinion of the writer, the foregoing statutes contain ample authority for the Commission to appoint a Chief Engineer, if such action is considered necea- sary for the proper discharge of its duties.
In submitting the above- uoted request, the Commission has mede two significant findings: ? 1) that it finds "it necea- aary to employ a Chief Engineer of the Railroad Commission" ad (2) that "there is no similar position in the Railroad Commia- aion." The dignity of these findings and the regard which must be accorded them by the ,Attorney General is considered to be the aame as that accorded such findings of the Commission by the Courts of,this State. Although these findings are not orders of the exact character which have been before the Courts of the State on numerous occasions, they are findings made in connection with the internal adminlstra%ion of this important body, and it is assumed they will be incorporated in,an eppropriate order in the event the Commission's questions are answered in the affirma- tive; the Attorney General must assume that the findings have ample support in fact, although the facts in support of same are not set out in detail, and he must accept such findings in the absence of clear and satisfactory evidence that such are entirely without support, in fact.
The well-known case of Shupee vs. Railroad Commission of Texas, 123 Texas, 521 73 S.W. (2d),505 (Civ. App. opinion reported S.,Ww. (2d) 295), the law of which case was reiterated *4 Honorable Railroad Commission of Texas, page 4 0 -6986 in the recent case of the Railroad Commission of Texas, et al, vs o Metro Bus Lines, Inc “, handed down by the Supreme Court of Texas on December 1945, bu’t not get reported, clearly indi- cates the stature of such ffndfngs of the Commission as viewed by the Courts; and in the opinion of the wrfter, support the fore- &&g conclusion and control the A%%orneg General in the instant case. Other cases in which %b.e Courts have discussed and passed upon the dignity which must be accorded rulings by administrative officers OP’ bodies, made within the discretion vested in them by the Legislature are Cone’Johnson~ vs, James E. Ferguson, S,W. (2d) and State ex, rel. Marrs, et al, VB~. Abshier (Corn, App,) 263 S.W. 263. The case of Malars vs. Railroad Commission, 142 Tax. 293, is not consid,ered to be In conflict because 1% turned on constitutional questfons and the construction of a particular appeal statute D
The quoted letter Implies that the Commission has also found as a fact that the position of Chief Engineer which It pro- poses to establish Is comparable to that of the Chief Engineer of the State Highway Department, the State Hlghwag Engineer. The Attorney General assumes that the Commission is familiar with the powers and duties of the State Hlgbway Engineer, Art. 6669, V.A,C,S., a8 well as the professional qualifica%i.ons required of the incumbent of the posi%ion, and that the two positions will be fn fact comparable in all substantial respects. In %he absence of facts clearly showing they are no% comparable, the Attorney General is again bound by the ffndlngs of the Commission; he will not disturb or restrict the exercise of discretion duly vested In the Commission by the Legislature through the several acts herein discussed, to determine whether the positions are in fact comparable,
Since, In the writerrs opinion, the Commission has
ample authority to appoint a Chief Engineer, the next question Is whether the Commission can compensate him for Ris services, or stated another way, w”ba%her or no% an appropriation is CUP- rentlg available out of ‘which the Chief Engineer’s salary can be paid 0 In its letter, %he Commission ha8 s%ated, t’hat it is pro- posed that he be paid out of monies appropriated by the Depart- mental Approprla%ion,v Bill of the 49th Legfslature, Regular Session, Senate Bfll No, 317, ppO to 951, Vernon’s Texas Session Laws Service, and that his employment will be accom- plished in accordance wf,%h sub-paraagraph d, paragraph 14, Set, tfon 2 of the General Provisions of said Act, which provides as follows:
“d . Additional Employees F Compensation D When any additional employees other’ than those for which specific salary appropriations have been made. are employed and are to be paid out of contingent aooro- *5 Honorable Railroad Commlssion of Texas, page 5
priations, such employees Shall no% be paid a larger amount than that provided in the regular appropriated salaries for similar positions in such department or agency, and Ln the event there are no similar posi- tlons within such department, then such addltional~' employee shall not be ,oald a larger amount than that provided for BimilaP Positions in other departments 01" auencies. In the event laborers, skiIled 'laborers, and mechanics cannot be obtained at the above-mentioned salary Scale, then the head of such department may pay for temporary employment only not exceeding the pre- vailing wage scale paid in the locality where the tem- porary service is to be rendered," (Emphasis supplied) The attention of the Commission IS also 1nvlted~'to the item8 Of .%ppPOpPiatiOn fOP "COntingetIt Expenses" in it8 "tiein Office", "Motor Transportation Division", "Oil and Gas Dlvlslon", and 'Gas Utilities Divlslon", included in the Departmental Ap- propriations Act, and the language Fn each, which provides it may be used to pay "all other necessary help and expenses",
The quoted provision of the Departmental Appropriation Act, along with the speclffc appropriations to the Commlsslon for "Contingent Expenses" constitutes ample authority for the Commis- sion to employ personnel not specifically itemized, and is author- ity in addition to that heretofore referred to at some length. As already stated, it is the oplnion of the writerthat:%he Attorney General should and must accept the findings of the Commission relative to the necessity for the employee, the nature of hi3 duties, the fact there is no similar position In the Railroad Commission which would furnish a "yardstick" for setting his salary, and that this position will be similar to that of the State Highway Engineer. The "Contingent Expense" Items of ap- propriation have been made by the Legislature, to be expended 'as needed" and in accordance with the discretion of the Com- mission, as Slightly limited by the aforesaid provisions of the Act.
If the Legislature should disapprove the Commission's .-. manner of exercising Its discretion in spending these items of ~... approprlation, and should the Legislature be of the opinion the
Commission should not have a Chief ~Engineer at the salary pro- posed, then it may express itself accordingly in the next biennia appropriation bill. The Attorney General, like the Courts, will construe appropriations made for carrying out the purposes of legislation concerning the Commission liberally, to effectuate the purpose and Intent of the legislation creating and financing the Commission and that giving the Commission additional power and duties; this construction is required by the case of Railroad Commission of Texas v. Galveston Chamber of Commerce, 105 T. 101, *6 Honorable Railroad Commission of Texas, page 6 o -6986 145 s.w, 573. The Commission Is fn the best position to know how its contingent appPopriation8 should be spent to effectuate the purposes of legislation concernfng the Commlsslon. It is the opinion of the writer that the Commi.ssion may compensate t%B Chief Engineer out of funds appropriated fn the current departmen- tal Appropriation Act, pursuant tothe quoted section of “General ProviBio~s" and the specific Items hereafter referred to.
FuPtheP, as to the nature of the duties of’ the pro-
posed Chief Engineer, atten;tion is invited to the usual signifl- cation of the’ term .or title as it 1s used in commercial as well a3 govePnmenta1 organizations; the Chief Engineer is just that, the highest ranking engineer having general authority and technl- cal supervision, as well as administratIve PeBpOnsibility ‘for suchsupervision, ov’er all other engineer8 in the organization- such, fop example, as division engineer, right-of-way engineer, maintenance engineer, various specialized engineers, such as petroleum, civil, elect,rical and mechanical, The State Highway Engineer does have such over-all supervision of eng,ineering matters Fn the State Highway Department.
The title Chfef EngineeP was discussed by the Courts In the cases of Herrfck v. Belknap’s Estate, 27 Vt. (1 Williams) 673, 679,, and State vs. E. V, Doyle & Co., R-1. 96 ~..605,.~610, cited in 6 Words & Phrases, 747" The diBtinC%iOn between the Chief EngineePB and other engineers may be better understood from the following quotation from the latter case:
contain implications as to the authorftg to represent ,I Y [0] Y We think %he words ‘chief engfneer’ the principal which are wan%,fng In the Word3 sconsul,t- ing engineer.’ The word ‘consul5ing in su.ch connec- tlon simply designates one who is brought Into confer- ence about a case or projecb or some phase thereof, DD” Thus, 1% fs apparen,t thtlt %he items of approprla’tfoa to the Commission for “Senior Engineer”, “Petroleum Engineer”, “Junior Engineer”, “Chief Va,iua%Lon Engineer”, “Valuation Rngineer” and “Civil Enginee:?” do no,t comprehend the over-all duties and functions of a chief eagfneer In the usual signlfica- tion of that term, which augments the Commission’s findIng that there is no simil%P po~I%fon now in existence in the Commission, the salary for which would determine the maximum which could be paid the Chief Engineer under the limfta%lon provided in sub- paragraph d D
Since the employee is to be the Chief Engineer of the Railroad Commission and to have cognfzance over matters In the several divisions, as indicated by the Commission’s letter and the titie of the position, It fs believed to be appropriate and proper that his salary be paid from any one of the several afore-
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Honorable Railroad Commission of Texas, page 7
said contingent appr~opriations, But he r?mst not be a subordinate in one of the divisions if he is to receive a salary equivalent to that of the State Highway Engineer, for if he were a part of and limited in his authority to one of the divisions, his salary would be limited by salaries set by the Legislature for similar positions in the division, 0~ for employees performing similar duties. The Chief Engineer, if functionally restricted to one division, could not be paid a salary in excess of the Head of the Division's salary. Opinion of the Attorney General, No. o-5440, dated July 1943.
The Attorney General has passed upon the provisions of ppio~ appropriation acts for "Additional Employees' Compensation", couched in substantially the same verbiage as sub-section d, above quoted; the Opinions a,pe Numbers o-5440, 0-6022, O-6659 and O-6739. Each of these opinions can and must be distinguished upon the facts before this Department in one or more ways, but the distinction common to each 1s that .thLs Department did not have before it findings on the part of a quasi-legislative, quasi-judicial body, like the Railroad Commission of Texas, (1) that the positions were necessary; (2) tha,t no similar positions existed in the depart- ments, the salaries for which would determine the maxinum salary which could be paid as the case here, and (3) an implied find- ing that the position sought to be established was similar to another specific position in the State government. THerefore, these opinions ape not considered persuasive OP binding in the instant case.
In summary, you ape respectfully advised that the Com- mission has the authority to appoint a Chief Engineer and to compensate him from any one of its contingent, items of appropri- ation.
Yours vex-y turly, ATTORNEY GENERAL OF TEXAS By s/James Noel James Noel, Assistant JN:JCP:wc
cc: State Comptroller, Austin, Texas
cc: State TLaeasurer, Austin, Texas
APPROVED DEC 20, 1945
s/Carl& C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/GWB Chairman