Case Information

*1 H6miirabIe'James E Kllday, Director

Motor Transportation'Division

Railroad Commission of Texas

Austin, Texas

Dear Sir: Opinion NO 0-4418 Re: Authority of the Railroad Com-

mission to divide a specialized motorcarrier certificate and to approve the sale of a portion . thereof under the described facts.

..~ ~.

Pef%ilt us to-quote your reient letter requesting an opinion

from this department.. It reads:

"The Commission has your opinions Nos. O-4246 O-4380 &i&'hold'~tliat the'Rallroad ComUssion of Texas does not hWQ'autlibrXty 55 apgroire the dlVSsion of a ,Speclallzed Mdtoti CWrSei-mCertlfi6ate Where under the dlvlsltin each.of _ ~~.. thC'cbtitifi&tbs would retain the right to transport house-

hold goods and used office furniture and equipment.

"You will note under the amended application filed by the applicant dated February 10, 1942, Paragraph 2, reads as follows:

"'It is.deslred and herein petitioned that said Certificate be divided into .two (2) parts, one part authorizing the transportation of household goods and used furniture from Houston to all points In Texas and from all points in Texas to 'Houston. The other part to authorize the transportation of all other commodities set forth In said Certificate save and except the right to transport household goods and used furniture.'

"Please give us your opinion In view of this amended appli- cation whether the Commission would have the authority to approve the division of a Specialized Motor Carrier Certifi- cate where one part of the certificate after division would retain no authority to transport certain commodities authorized in the original certificate.

In opinion No. O-4246 by this department, to which you refer, it was stated:

Honorable James E. Kilday, Director, Page 2 (~~-0-4418) "InOpinion Ro. O-1096 ~this department upheld'the authority of~the'Railroad~Cokimisslonto approve; under certain condi- tions the sale of aportion of a'comrhon carriermotor certi- ficate of 'convenience and nedessity under Section.5, Article gllb,'Vernon'S Annotated Civil Statutes. The question deci- ded in this opinionwas involved In the case of Houston and Rorth'Texas Motor Freight Lines, Ind., et al vs. W .A. John- son, 'et Cal, detiided.by theGalveston Court of Civil Appeals ._. on the 11th day'df 'De&iiber, 1941: The court upheld the

action of the Commission in approvlng'the sale of a portion df"such certificate under the conditions and facts pre- sented.***"

The dase referred to is at this time before the Supreme Court 6f‘TexaS i.ipon'thi'granting of a.Writ'of Error on "Point One," whichdoes not'.involve‘the question of the-'power of the Coiiiniission to .approve the ~sale of a portion~of a common c&r- PSefXiotof~'caFrieti ceftificate'of convenience and.necessity piiis'~~‘d~dn'b;y'.the.Cdri~ of‘Clvll'Appeals. Because of the s~il~rity'~iri'thd~l~~ge~df~S~ctiori‘~'~f~A~tlcll'"gllb, Virddii~s~Annotated Civil~Statiites; lnvolved'ln~thls case td'thatof Sectlon~5a(a); 'as'amended '~yjySedtiLori'4.0f'House I3331 351; .A~t,s~~of-the'.47th.~~isIature, pertaining to'the i%lS of speci~liied-~~to~.cal;rSe~ certifibates;' the“dec5.l ~sBn ~iii .eHlij. co8(t &&& .~~e. .bklxe+e, ~~rit;rtis .thc an~~ef. td _ _ . . . the'qdestlons you ha~i‘submi~tid; ‘Undef“the'hbldSrig of the

GU.l*eZ?ton~'Oourt you would; In our opinion, be authorized to. dIvlde-a%pecialized-motor carrier certificate In the manner 'sit out in the ~amended application as described in your letter., and-approve the sale~of a portion thereof, If otherwise per- mi,sslble under the provisions of‘Section 5a(a), which reads: "Ahjr‘~&ertlfScste held, owned, or obtained by any motor carrier operating as a ~spei3.Cllzed motor carrier' under the provl- &ions-'of~this Act, may.be sold, assigned, leased, transferred,' Sir lhheritedj' provided, however, that any proposed sale, lease; assignment, or transfer shall be first presented In wi%tlng to the Commission for its approval or disapproval, and the Commission may dlskpprove such proposed sale, asslgn- ment, lease, or transfer If it be found and determined by the Commission that such proposed sale, assignment, lease, or transfer is not In good faith or that the proposed purchaser, assignee, lessee, or transferee is not able or capable of kontlnulng the operation of the equipment proposed to be sold, assigned, leased, or transferred in such manner as to render the services demanded by the public necessity and convenience in the territory covered by the certlfiaate, or that said *3 Honorable James R. Kilday, Director, Page 3 (~~-0-4418)

.'~ “j:..:': ,, 'i' I . proposed sale, assignment, lease, or transfer.16 not best for the'publld Interest; the 'Conimission;in a$prOving or disapproving the sale, assSgiiment;'lease; or transfer 'of any certificate; maytake into consSderatlbn all of‘the requirements 'and~qualifikations of a regular applkant re- quired in'this ACt and apply same as necessary qualifldations of any proposed -purchaser, assignee, lessee, or transferee;***." The CoPrmlsslon may therefore disapprove anysale a speclal- Szed'motor carrier~'certlflcate, or a portion thereof, unless St flnds.the folloting facts: (1) 'That the'proposed sale Is made'in -good'falth;. (2)‘that the proposed purdhaser is able to Continui.'the-operation of the equipment 'proposed to,be~sold Sn'sukh manner as to meet the public -Wnvenience and necessity tiistent'ln~the premises; (3) that%he'proposed'saIe~is bests for the~publSc interest; .axid (4).'that:the jpurchaser possesses the requisite qualifications of a regular applicant. .' ,

lq..+do~ssg~&j say, and'stiould, accordingly Snquire'idto the .facW'conciMiSng thi'proposed sale and make the flndSxigs'd&med by the"LeglslatuiWtd .bd'of imIW3AuiCe:"In this connedtion We call'your attentSon to'~the'dealaratSdn"of"'polSky~'dontaSned SnXWtSon 1~~of~House'RSll'No~ 351'whereln It 1,s said of specialized motor carrier operations: - _ - . - - _ .,

'* *"* to 'regulate such.cari%ers in the.publlo interest to ~he'e~d't~~t"the‘higharays'may beg rendtred'safer'for the use b;f-tK~-gehd~al‘piiblSc;.~h:h8t the wear‘of such hIghWays may be i;lad~~~;~t~a~'ctili~~stlon of traffic on the highways may be .I minimized, and that the use of the highways may be re- Ctrlcted'to .the extent required by the necessitf of the general public; provide regulation for all common carriers, fiithout unjust discriminations, undue preferences or advan- tages, unfair or destructive competitive practices; improve the regulation of suoh motor carriers and other oommon oar- riers; preserve the comon carrier servlng.the public In the 'transportation of commodities generally over regular routes; develop and preserve a complete transportation system pro- perly adapted to the needs of the commerce of this State and of the National Defense Program".

The Railroad Commission obviously should not, by approving the sale 0f.a specialized motor carrier certificate, or a portion thereof, authorize an operation which has.been discontinued by the.original owner of the certificate. In this connection we call your attention to the language of Mr.. Justice Critz of the Supreme Court in the case of Railroad Commission VS.

Honorable James E. Kil,day, Director, Page 4 (~~-0-4418) Texas & Pacific Rail”’ y Company, et al, 157 S. W. (26) ‘622, didided ‘Noverhber~ 19,x 941, wherein the court was.ccnsSderSng House Bill No. 351: ..,

“If we ere to construe the act of 1941 as authorizing ‘then Usuanc ii of new csrtlflcates based on old permits, r&gad- less of whether op not such old permits were being operatCd Under;a very grave qukatioti as.to’the constStutl6nallty of * the 1941 act would be.@resented, but, as alrekdy shown, we donstrue euch abt as ofily authorizing new certificates based 6fi old permSt& where the old’pWmlts were being operated.

Wd&ti on ‘January 1; 1941. So ‘contitrued, the’act of 1941 k&Wits to ‘a-reason&ble La~Sslatlvb“findl~g‘of convenldrice tid fiecbsrjSty~‘aa apPlSbd to 6x13 petiits’whlch are authorleed to be la?uea,?a~ a baale for new,certlflcates.* + +I’ ,..

Iii thib Snetaht ‘a@pl$@s;tion the proposal. is made to’ dlvlde the aB tb tiiat’part’author- dpddiallked’mdt6~ balm?idr’certifloate tSiiap6titdHon ‘of’ liotisekiold goods ana uaed’offloe ltUigPthi ~QiitlitursY iiidni’~Hdrliot6~“t6’al~“polnter In Texae’and iMu all ‘or;hti“m’Tejuij‘tii’Ho~dtijn;‘ond to ‘Bell such pbrtfon. If au E “rhltitdti of’ ~a6t’the’t~urspostatlon these partioular oonl- ‘~6dltIlii’kira bd~ti’dib~dntinued or Abandoned b the holder oi it would appear dou 3: tful that, :the tbr’~o~l~lhL1”be~tfildatr, ‘~~~~d’dorivrnlinor ‘Ed nromrrity required auoh operatioll’and ? .~ hat the ralr oc tranrEor therrol would be bht for the pub- lie lntorout. . ,.I_

Oon6ltitrht with throo oonrldrrationr, and upon the authority Llnre, of~the oabocof HouPton North Toxao Motor Freight Ino,, at al, VP, W, A, Johnoon, .It &l, a8 it now rtandr pou LrQroo oot$ull adviood that it lo tho o Won ol thin do- &Mfnon that 6 ifI e RWroad OommLoolon wou d b o l uthorlsod to P #. .~? an dororlbod lvldo tho cpoolallaad-mobor oarrlor,oortilioabo ln pour loWor and~bp approve tho ralo OF ruoh portion thrroof,

Your8 vary truly ATTORNEY QENERAL OF TEXAB AF?ROVED MAR 86, lgb w FlRST ASSISTANT 201110 0. stiakley ATTORNEY QENERAL

~Aeeletant