Honorable Penrose B. Metcalfe, Chai-

'HonorableFred Mauritz,Member Committee on Highways and Motor Traffic Texas Senate Gent bemen: opinionNO. 

### o-5165 Re: Whether obedienceto Office of DefenseTransportation orders by truck operatorswould be a violation of The Texas Motor CarrierAct. (V.A.C.S.pllb andV.R.P.C. 

### 16901.1.) By letter SenatorMeuritz has asked the following questions: "Attachedhereto is a motor vehicle lease form filled out to cover a possible transaction. Such leasemay involve a longer or shorterperiod of time.
"Is the fulfillmentof this contract a violation of the Motor CarrierAct of Texas, on the part of eitherparty to the contract? "KXAMPLE "'A' is in the wholesale grocerybusiness, 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 transportationof his ownmerchandise, and under the control specified in the above mentioned lease contract. "Is the legality of such a contract in any way affectedby 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 grocerybusiness and own a truck. He transports a load of merchandise from his place to .deStination 'Y'. Under existing rules issuedby the Office of Defense Transportation,he is not allowed to move anTexas 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 'anotherperson', 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-termuse of truck.
"Is the legality of such a lease made in good faith, and conformingto OM' regulations, affectedby the shortperiod of time specified in contract? "Is a short-term lease of this character forbiddenby the Motor CarrierAct of Texas? "Is the legality of such lease contractaffectedby the circumstancethat: 1. Lessee ie a shipperwho owns no trucks. 2. Lessee is a shipperwho owns trucks (private truck owner)but needs additional equipment. 3. Lessee is a carrier for hire." By letter of March 29, 1943, SenatorMetcalfe, Chairman of the Senate Committee on Highways and Motor Traffic, wrote us as follows:

"SenatorMauritz, author of S. C. R. No. 23, has filed with you a question as to whether certain lease contractsmade by certainmotor carrierswould be in violation of the Motor CarrierAct. This resolution has been consideredby the Committee on Highways and Motor Traffic, and an opinionwould be appreciated." The questionswill be answered in the light of S. C. R. No. 23 now pendingwhich reads: "ByMauritz. 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.) "SEHATECONCURRENTRESOLUTION
"BE IT RESOLVED by the Senate of the Legislature of Texas, the House of Representatives concurring,that "Whereas the Office of DefenseTransportation of the United States, for the purpose of conservingrubber and motor equipment,has promulgated General Order O.D.T.Texas Senate,Page 

### 3 (o-5165)

No. 

### 17which 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 serviceunless it 16 loaded to capacity, except as follows: "'(2) On and after September 1, 1942, each motor carrier and its representatives, includingthe 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 consistentwith any prior commitments involved in the use of said truck en route, to another person for the transportation of property. . .' "NOWTHEREFORE, BE IT RESOLVED that Chapter 

### 314,General Laws of the State of Texas, Forty-first Legislature,Regular Session, and amendments thereto, commonlyknown as the Motor CarrierAct of Texas, shallnot be construed, for the period of time that the United States is engaged in war, or the Federal Government'sOrders remain in force as to leasing of motor vehicles, to mean that it is a violation of saidAct nor any amendment thereof for a private truck owner to lease or rent his truck to another person in compliancewith 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 compliancewith said General Order 0. D. T. No. 

### 17 and said truck is used and operatedby said lessee,neither the lessor nor the lessee shallbe deemed to have violated said Motor CarrierAct nor any amendment thereof, and that neither the lessor nor the lessee in such case shallbe deemed to be a common carrier or contract carrierunder saidMotor Carrier Act, as amended, regardlesswhether under the terms of the lease contractthe lessor does or does not furnish the driver for the truck and regardlesswhether the lessor does or does not agree, in whole or in part, to maintain and servicethe truck, provide gas, oil, tires, and pay other expensesnecessary to operate the truck while'the same is leased to lessee.
"BE IT FURTHER RESOLVED, That this resolutionbe published to the Railroad Commission of Texas, the law enforcement officers and the Courts of this State." S. C. R. 23 iswritten for the praiseworthyand patrioticpurpose of preventing the enforcement of the Texas Motor Act in such a way as to interferewith the order of the Office of Defense Transportation to save rubber,motor-truck equipmentand manpower. However,we believe that it iswritten under a misapprehensionthat the Texas Motor Carrier Act can conflictwith the enforcement of the orders of the Office of Defense Transportation. In a previous opinion to the Railroad Commission.

Texas Senate,Page 4 

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of Texas, Opinion No. 

### 0-5026,on the question of the right of the army to have a carrier operate army trucks over highwayswithout a permit we took the view that whereever the Federal Government in exercise of its war power directed that thingsbe done in a certainway, that this war power was superiorto the State's police power, and that the Texas Motor CarrierAct accordinglywould be limited in its application so as not to run athwart any order issuedby the Federal Governmentpursuant to authorization of Congress. We quote from said opinion:

"FederalWar Power is Superior to State

Police Power
"Webelieve 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 JusticeWhite 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 elementaryprinciple that, under the Constitution, the authority of the governmentof the United States isparamount when exerted as to subjects concerningwhich it has the power to control, is indisputable. This being true, it results that although authority to regulatewithin a given spheremay exist in both the United States and in the states,when the former calls intoplay constitutionalauthoritywithin such general sphere the necessary effect of doing so is, that to the extent that any conflictarises the statepower is limited, since in case of conflict that which is paramountnecessarily controls that which is subordinate.' "The powers of congress over intrastate commerce are plenary when a federal instrumentalityor national purpose is involved.
"Inpassing upon the same question the New York Court of Appeals in Public Service Commissionvs New York Central Railroad 129N. E. 455, said: "'This action (intrastaterate fixingby a federal agency)was not justifiedby any of the ordinary rules of law. It can be sustained solelyas the exercise of the war powers of the United States. And these powers are not limitedby these ordinary rules. They are not bounded by any, .. -

Texas Senate, Page 

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specificgrant 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 suchpowers as are essentialto 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-timepolice 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, 

### 247Fed. 

### 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 regulationsof police has been left to the individual states, and cannotbe assumedby the national government, it is sufficientto say that the statute here assailed rests, not upon the police power, but upon the war power, conferred on Congress and recognizedby the law of nations."'
In case of conflictwith 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 certificateof public convenienceand necessity or permit of the Railroad Commission, canbe subjectedto any of the fines and penalties provided for in the Texas Motor CarrierAct for using his truck in a particularmanner if such action be required of him by a lawful order of the 0. D. T., even though such order conflictwith the terms of the Texas Motor CarrierAct. APPROVED APR 2, 

### 1943 /s/ Grover Sellers FIRSTASSISTANT ATTORNEY GENERAL

DWH:PM:LM APPROVED OPINION COMMITTEE Yours very truly, ATTORNEY GENERAL OF TEXAS

By /s/ David W. Heath

David W. Heath Assistant