OFFICE OF THE AITORNEY GENERAL OF TEXAS
**AUSTIN**

**-a- -a** 

Honorable Len d. Snlth, Chairman Reilroed Codsslon of Texas NlatLIl, Texas Deer sir:

This Is In enswe in regard to ,wtiole 6479, Statutes or nmis. your Is

vnder date 

## orJ ert 68 tollovJs: the rronorable

trtktion of Revised Civil unded to hln

ioeble on a oerroad provides POT und on ona day and

e fulfill the tiinlmm requirements, mice, of Subdivision 2 of ~rtiole

-In the opinion above mentioned, the.kttorney Caneral ruled *that the wwds *at least one train e dep, a6used in Subdivision 2 of krtiale 6479, meagNonetrain a day each way.“( *.

. ., wehave before us a schedule appliceble on a railroad branah line whloh provides iOr northbound passenger aertioo over the entire branohI-Ion. LouA, Smith; Chairman, page 2

on Mondays, Kednesdays and~yridays, andsouthbound passenger service over the entire ‘branoh on TEesdays, Thursdays andSaturdays1 andwhich does not provide for any southbound passeqer service on Mondays, Redneedays andFridays, or. anynorthbound passenger service on Tuesdays, Thursdays andSaturdays.

‘Your opinion is requested as to whether peskenger service so provided Is suffioient to aeet the minimumrequIre%ents of atlale 6479 of the Revised Civil Statutes, &a avended.” Thestatute involved In this question is Section 2 of &tIols 6479, which reed8 as followsr

*It shall be the duty of the cozmission to 6ee thst upon each railroads In this State carrying passengers roti hire thcru shell be run at .leest one traIn,each day, Sundays exoepted,~$.on which passengers stall be hauled; pmvided, however, the Comission my, ti its discretion, uponapplication filed and after notice ahd hearing, relax such requirement aa to any reilrozld, norpart, portion or brsnoh thereof, whenIn its opinion, publio oonvanienou perfits of such relaxation, nndshall relax such roquirment when it appears upon such hearing that tha ruming of one train each day, Smdays exoapted, is not necessary In the rendition ol adequate stirvice to the publla, OPthat on anyrailroad, or part, or portion or branch thereof, passenger service as frequent as one traiil aaah day, Sundays exaepted, with the passeu;.;sr traffic OPllaredandreasonably to be expected, does rot andwill not say the cost of suah sarvioe plus areasonable return a?- on the property ezploynd In the rendition of auoh servioe; andCo~~A.ssIonshall LPurt,!:erzegiilrlute passenger train service so as to rw~uira i;t?e stoppaa,;e.of. suoh trains, for a time mfficient to receive andlet orf pzsseneors, at such St&Ions 8smy be desimzted by the COZIdSSiOn; tird It nny further prescribe the nuder of trr:En so operated ezch daywhich shall be re~>ircd to Stop at County seat stations; and if ouch railroad, or braaah of sameshall operete a g&olIua or electric motor car over Its line, carryI.nS pasaengers Por hire In this State, such motor Car .. ..( -.,;..:‘>:.;.:ffon, Len A+smith, Chaiman,.psge 3

shall be deemed atrain Hithin the moanIn&of this Article and shall be subjeot to andincludedwithin the provisions hereof.” ours) (UhdersoorIng

The question we are asked to deoide Is whether the phrase net least one train each dapnmeansonly one train a day Onew&yor means om truin aday eeoh way.

fn 1931, whenAttorney Oeneral hllredcs opinion (by Assistaut iLlbert Rooper, January 17, 19X), to :&Ich you p6fer, waswritten, the statute in qwstion read us follows;

*Tt shall be the duty of the CosmIssioners to see that, upon every Railroad branch of sam, aarry!.5g passeAngera for hire in this **State, shall**  be run at least one train e day, Sundays excepted, upon whioh passeh+;urs shall be hauled, and the Co&sIoners shell 03ve no‘power to relax this P rovislon; provided, however,. the ComlsB1on my, n its discretion, relax such requir=ent as to any reilrosl in this State less than fifty tiles in length and the gross annual passengai revoaue8 -of which ere lessthan $SSOO.COlend said Coanission shall further re&te passenger train 

### sbrdoe to stop for RtI.mesllffioient to receive and let off pcsmngora at such stations es xay be desI@ated by the Comla~loner; provide6 that So-z trains saoh way, carry- gaosen@rs for hire, S.fso !xmy em run dnily, Sundays excogtod, be required to stag as aforesaid at all oouuty **seat** stations Jad If ouch rtiI.lroad or brtrrrohof tmneshall operate a gasolIn& or .olectrIo notor ear over Its line carrying passengers f.>r hIro in this State, suoh motor oar shall be deewd~ R train -wIthIn the meaning of this Article and shall be subject to andincluded within the requlrenants the.t at least be ruu every day, Sundays excepted, s.ndthe requiremnt r;ndoby the ComuIesIoaers as to stoppii~g for a the StdTIoient to receive and-let off gassungers at dasIgneted stations ,w &torneg Oeneral iillsedgs opinion held that the worda *at least one train a day” meant omztrain adrigeaoh Way; and erter oiting sev6ral authorities on statutory construction, the opinion contained language as follows;i HOIon. LOn A. %ith, ChaIrman, page 6

a railroad Op8rathg o&Such a Sohedale prould be running a train only every other day, and in violation of,.;rtl~le 6479, '5s wall as irtlalo 6357. Treating the twoStatutes prospect1vel.y and6ivih6 efl'eot to bath, railroads are reaulrod by their ter;nsto operate a trsln a day oath way la order thtiitall passengers andi'roight *mybe 6oeomodated. That these two Articles Should be construad toc.e$her is Supported by the oaS%of Raikoad Co~vnission of 'Iex4s, et al vs. Galveston, H. ES. A. Ry. Coi, lJ.29. 71.345, 349.'

ae are frank to say that if tha question were an open onewemight reach a different con~oluslon fromthat stated in :,ttornoy Ceceral Allred* opinion, but in view ot that opinion audwhat has transpired since it waswritten .wedonot feel inclined to ~0vcrruJ.e.it.~

Weare advised that the Rallroad Co;cmission oi Texas has followed that opinion, that it has beeh uniformly acquiesced in bythe railroad compahles, and that it has been considered the law by all persons comemcd, cantlnuously since it has been written. Tn.ths GaSeof ~hoorlpan v. Terrell, Co;lptroller, 109 Ter. 173, 202 3, W. 727, the supreme Court of Tcras said:

~a#ain, aouhd publio policy recjulras .tha sol&g of xaeredoubtn in Savor of ths coxmruotion put upon laws bythe departments and ofSiuers charged with their administration,

. . .-

It will be notl$aU that the Statute in question nowreads dlXerently, partioularly ln the last part of the paragraph, fron the way it read in lF31 whenjdttorhey General ;rllred*s opinion waswrit&e&. Yhechon6e WASSLsdoin 1933 bySenate sill 331, Gh, 111, 43rd Legislature. The part Y;Bare concerned with waSnot ohahicgedexcept that the words, "at least one Grain u.da~~*were chcz;cd to *at least one train each day", but we believe that ehnn::9 1s immaterial. Thematerial chances viere in,the latter part of the paragraph after the word *provided."

Wadoue to this conclusion: Pihenthe Legislature amendedthis,statute In 1933 azI did not .ztorilly cbunse the part of tho Statute providln.~ for ut loast oze train a day, Mioh provision had beea previously construed bytheHan*Len **A.** smith, chairman, gage 6

Attorney Gsneral as meaning one train Rday eaoh wayand enforced to that offoot, we believe the Legislature intandadfor that oonstruction to continue to be the law. IIIthe aase of oxen vb Gates, 119TSX. 76, 24 3. ‘ri’

. (2d) Sal, the commission of LA~peabsaid:

“It ~ziustb; presumed that, v&u the ~a&&- turo psoed the last-nszed statute, it knewthe commissioner of the land office had intersrated art1010 5526 as not requ:rm the applicant ior rsinstatemcnt to pay aaorued interest to ths date OSreinstatement, but only that which was due under the terms of the contract which was b&in6 reinstated. If the Legislat’ze, bythe psxzzgiie of article 5%lb, cozt:tglated a ohan6e Promthe method in 

### force

by the land offloe, it would no doubt have madeplain its purpose to change the 

### ruleot oonstruot~on then be% 4pplied. Not h4ting a030 SO, itmit bo pra3miad tkt th0 .lox-continued construotion .of that department MB intended to be continued under the provk:ons OS,the later law.* the ease of kOXallumt. ~ssoaiatod Z?:etcil Credit Xen, 26 w. 

### (2d)

Il.5 {reversed on other grounds) the Court of Civil - .~. appeaui et ~ustxn sala:

*Tnthe recent case of Odeikv. Gates (Tex. coti. Apg.) 24s. w, (Zd) ?181,it ~4s held that St would be presusmd, aCsent sy~iffc largua6e in an act azendlrg a doubtful statute vM.ch a &p.rtmont. of tk. ,ststs government had construBd in a certain man%ar**for** 25years, to be t&e fntention of the Legislature to conttnue the &Fartmental constructj.on of the statute.* yt Ls our opinion, snd you =re so advised, that you should coztlnue to follow Attorney General .Ured~s opinion to the elfsot *h&t tka phrase in irticla 6478, R.C.S., saying *at least one train satohday* meansone train a day euch way, yours very txulg .