Honorable Penrose B. Metcalfe, Chai- 

'Honorable Fred Mauritz, Member 

Committee on Highways and Motor Traffic 

Texas Senate 

Gent bemen: opinion NO. o-5165 

Re: Whether obedience to Office 

of Defense Transportation orders 

by truck operators would be a 

violation of The Texas Motor 

Carrier Act. (V.A.C.S. pllb 

and V.R.P.C. 16901.1.) 

By letter Senator Meuritz has asked the following questions: 

"Attached hereto is a motor vehicle lease form filled 

out to cover a possible transaction. Such lease may involve 

a longer or shorter period of time. 

"Is the fulfillment of this contract a violation of the 

Motor Carrier Act of Texas, on the part of either party to 

the contract? 

"KXAMPLE 

"'A' is in the wholesale grocery business, and does 

not own any trucks. He leases one or more trucks from 'B' 

(who is not a carrier for hire) to be used. wholly in the 

transportation of his own merchandise, and under the control specified in the above mentioned lease contract. 

"Is the legality of such a contract in any way affected by the circumstance,that: 

" 1. 'A' does own no trucks, or 

" 2. 'A' does own a number of trucks, 

but finds it necessary to lease 

additional trucks to handle 

his business. 

"'A' is in the wholesale grocery business and own a truck. 

He transports a load of merchandise from his place to .deStination 'Y'. Under existing rules issued by the Office 

of Defense Transportation, he is not allowed to move an 
Texas Senate, Page 2 (o-5165) 

empty truck back to his place of business. He is required, 

under such regulations, to seek a return load, leasing his 

truck to 'another person', who has merchandise to move to 

or in the direction of the place of businese from which the 

truck moved; hence, the need for leases involving only a 

short-term use of truck. 

"Is the legality of such a lease made in good faith, and 

conforming to OM' regulations, affected by the short period of time specified in contract? 

"Is a short-term lease of this character forbidden by the 

Motor Carrier Act of Texas? 

"Is the legality of such lease contract affected by the 

circumstance that: 

1. Lessee ie a shipper who owns no trucks. 

2. Lessee is a shipper who owns trucks (private 

truck owner) but needs additional equipment. 

3. Lessee is a carrier for hire." 

By letter of March 29, 1943, Senator Metcalfe, Chairman of 

the Senate Committee on Highways and Motor Traffic, wrote us as follows: 

"Senator Mauritz, author of S. C. R. No. 23, has 

filed with you a question as to whether certain lease 

contracts made by certain motor carriers would be in 

violation of the Motor Carrier Act. This resolution 

has been considered by the Committee on Highways and 

Motor Traffic, and an opinion would be appreciated." 

The questions will be answered in the light of S. C. R. No. 

23 now pending which reads: 

"By Mauritz. S. C. R. No. 23. 

"(In the Senate.-March 2, 1943, read first time 

and referred to Committee on State Affairs; March 2, 

1943, rereferred to Committee on Highways and Motor 

Traffic; March 17, 1943, reported favorably.) 

"SEHATE CONCURRENT RESOLUTION 

"BE IT RESOLVED by the Senate of the Legislature of Texas, 

the House of Representatives concurring, that 

"Whereas the Office of Defense Transportation of 

the United States, for the purpose of conserving rubber 

and motor equipment, has promulgated General Order O.D.T. 
Texas Senate, Page 3 (o-5165) 

No. 17 which provides, among other things, in Part 501, Subpart K, Section 501.69, as follows: 

"'Sec. 501.69. (a) No motor carrier shall operate any 

motor truck in over-the-road service unless it 16 loaded to 

capacity, except as follows: 

"'(2) On and after September 1, 1942, each motor carrier and its representatives, including the representatives, 

in immediate control a@ pbsseeeion of the truck, shall endeavor in good faith prior to its departure from any point 

when empty to lease or rent such truck consistent with any 

prior commitments involved in the use of said truck en route, 

to another person for the transportation of property. . .' 

"NOW THEREFORE, BE IT RESOLVED that Chapter 314, General 

Laws of the State of Texas, Forty-first Legislature, Regular 

Session, and amendments thereto, commonly known as the Motor 

Carrier Act of Texas, shall not be construed, for the period 

of time that the United States is engaged in war, or the 

Federal Government's Orders remain in force as to leasing of 

motor vehicles, to mean that it is a violation of said Act 

nor any amendment thereof for a private truck owner to lease 

or rent his truck to another person in compliance with said. 

General Order O.D.T. No. 17, and that where one private 

truck owner has leased or rented his truck to another person 

in compliance with said General Order 0. D. T. No. 17 and 

said truck is used and operated by said lessee, neither the 

lessor nor the lessee shall be deemed to have violated said 

Motor Carrier Act nor any amendment thereof, and that neither 

the lessor nor the lessee in such case shall be deemed to be 

a common carrier or contract carrier under said Motor Carrier 

Act, as amended, regardless whether under the terms of the 

lease contract the lessor does or does not furnish the driver 

for the truck and regardless whether the lessor does or does 

not agree, in whole or in part, to maintain and service the 

truck, provide gas, oil, tires, and pay other expenses necessary to operate the truck while'the same is leased to lessee. 

"BE IT FURTHER RESOLVED, That this resolution be published 

to the Railroad Commission of Texas, the law enforcement officers and the Courts of this State." 

S. C. R. 23 is written for the praiseworthy and patriotic purpose of preventing the enforcement of the Texas Motor Act in such a way 

as to interfere with the order of the Office of Defense Transportation 

to save rubber, motor-truck equipment and manpower. However, we believe 

that it is written under a misapprehension that the Texas Motor Carrier 

Act can conflict with the enforcement of the orders of the Office of 

Defense Transportation. In a previous opinion to the Railroad Commission 
. 

Texas Senate, Page 4 (0-5165) 

of Texas, Opinion No. 0-5026, on the question of the right of the army 

to have a carrier operate army trucks over highways without a permit 

we took the view that whereever the Federal Government in exercise of its 

war power directed that things be done in a certain way, that this war 

power was superior to the State's police power, and that the Texas Motor 

Carrier Act accordingly would be limited in its application so as not 

to run athwart any order issued by the Federal Government pursuant to 

authorization of Congress. We quote from said opinion: 

"Federal War Power is Superior to State 

Police Power 

"We believe that it is possible to answer this question 

by predicating our answer upon the war powers of the federal 

government. 

"In upholding the right of the United States to take over 

and control the railroads in time of war to the exclusion of 

any rights of the states therein, Mr. Chief Justice White in 

Northern Pacific Railroad Company vs North Dakota, 250 U. S. 

135, said: 

"'The complete and undivided character of the war power 

of the United States is not disputable... 

"'The elementary principle that, under the Constitution, 

the authority of the government of the United States is paramount when exerted as to subjects concerning which it has the 

power to control, is indisputable. This being true, it results 

that although authority to regulate within a given sphere may 

exist in both the United States and in the states, when the 

former calls into play constitutional authority within such 

general sphere the necessary effect of doing so is, that to 

the extent that any conflict arises the state power is limited, 

since in case of conflict that which is paramount necessarily 

controls that which is subordinate.' 

"The powers of congress over intrastate commerce are 

plenary when a federal instrumentality or national purpose 

is involved. 

"In passing upon the same question the New York Court 

of Appeals in Public Service Commission vs New York Central 

Railroad 129 N. E. 455, said: 

"'This action (intrastate rate fixing by a federal 

agency) was not justified by any of the ordinary rules of 

law. It can be sustained solely as the exercise of the war 

powers of the United States. And these powers are not limited by these ordinary rules. They are not bounded by any 
, . . - 

Texas Senate, Page 5 (0-51.65) 

specific grant of authority. They are not unlike what, 

in the states, we call the police power, but the police 

power raised to the highest degree. They are such powers as are essential to preserve the very life of the 

nation itself. When requisite to this end the liberty 

of the citiien, the protection of private property, the 

peacetime rights of the states, must all yield to necessity.' 

"The right of the federal government to invade the 

peace-time police powers of the State is shown in those 

cases upholding its authority to prevent sale of intoxicating liquors in areas about army posts in time of war, 

and avering like authority to punish in federal courts 

for the maintenance of houses of ill fame in areas about 

army posts, notwithstanding said areas are within a state. 

In U. S. vs Casey, 247 Fed. 362, in upholding the right of 

the Secretary of War to forbid the keeping of a house of 

ill fame within five miles of a military camp, the court 

said: 

11 I . 0 .In answer to the argument that the 

power to establish the ordinary regulations of 

police has been left to the individual states, 

and cannot be assumed by the national government, it is sufficient to say that the statute 

here assailed rests, not upon the police power, 

but upon the war power, conferred on Congress 

and recognized by the law of nations."' 

In case of conflict with the State's police power the federal 

war power is paramount thereto and controls. Therefore, our answer to 

your questions is that no truck owner, operator, lessor or lessee, whether or not he has a certificate of public convenience and necessity or 

permit of the Railroad Commission, can be subjected to any of the fines 

and penalties provided for in the Texas Motor Carrier Act for using his 

truck in a particular manner if such action be required of him by a lawful order of the 0. D. T., even though such order conflict with the terms 

of the Texas Motor Carrier Act. 

APPROVED APR 2, 1943 

/s/ Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

DWH:PM:LM 

APPROVED 

OPINION 

COMMITTEE 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

By /s/ David W. Heath 

David W. Heath 

Assistant