THE ,!TTORNEY GENERAL
OF TEXAS

**Aue-rxiw xl.**  **Tn8xAn** WILL WI JA30N ATTORNRYGkzNERAJ. my 22, 1957

Honorable

J. B. Walling,Chaiman CmmmCarriere Camittee House of Representatives Austin,Teraa

Dear &.a Walling8 opinionIvo. m-141 Re3 Constitutionality Of SenateBill1CO, as emended,

relating

to pamenger servioeon railroada.
This is in euswer to your requeet**for** au opiuionfrau this office as to the coustitutianality of Senate Bill 100. This Bill seeks to emu& Article 6479,veruon's Civil Statutes,

by providing:

“ 2. It shallbe the duty of the C~mnission to see that upon each railroadin thie State oarryiugpasseugers forhire there shallbe runatlesstone train eaoh &ay,Suu&ays excepte8,

upon which passengers shall be hauled;provided,however, the Ccmmissiou may, in its disoretion, upon applioation filed and afternotice and hearing, relax such requirement as to auy railroad, or part, portionor braucb thereof, uheu (1) in its opinion, public om~enienoe pentkits of such relaxation, and ma2 relax such requirement when it appears

upon suoh hearing that the ruuuingof one train each bay, Sundays excepted,

is not necessary in the rendition of adequate

8ervice to the public;or (2) that on auy railroad, or pmt, or portionor brauoh thereof, passenger

service

as frequeut

as one train each day, Sundaysexcepted, with the passenger traffic

offered

and reasonably

tobe expeoted,does not and will not pay the cost of such service plus a reasonable

returu upon the property employediu the rendition of such servicej provided,

however,that public convenience shall alwaysbe a superior consideration

in detenuiuiug

whetheror not the requireukent of nmuiug at least one paesenger train
a day may be relaxed;

. . .*
The portim of Article 6479 sought to be amended pro~idesn

“ 2. It shall **be** the duty of the Caomission to see that upon eaahrailroad in this State carrying passengers

forhire there shallbe nm atleastone train each day,Sundaye excepted,

upon which passengers shall be haul&j provided,however, the C~nmiasion may, in its diecretion, upon application filed and after notice an8 hearing, relax such requirement as to auy railroad,

or part, portionor bran& thereof, when, in its opinion,

public convenience

permitsof such relaxation,. .

_ .I

Honorable

J. B. Walling,

Page 2 (WW-141)

and shall relax such requirement when it appears

upou suoh hearing that the ruuuiugof oue train each day, Sundays excepted,

is not necessary in the rendition of adequate serviceto the public,or that on any railroad, or part, or portionor branoh thereof, passenger

serviceas frequent as one train each day, Sundays excepted, with the passenger

traffic

offeredand reasonably to be expected, doss not and will not pay the cost of such service plus
a reasonable

returnupon the property employedin the renditionof such service;D 0 +*
Under the proposed muendnent

the Railroad

Ccmmission

is authorized,but not required, ,to relax the requirement of rmming at least one train each day, Sundays excepted, in two situations: (1) where public oonvenience

permiteor where such service,is not necessaryin the rendition of adequateserviceto the public,and (2) where the passenger traffic does no.t

.:xld will not pay the cost of such service plus a reasonable

return.
The constitutional

problem stems frcpn the proviso to the seoond situation

providing

that public convenience shall always

be a superior consideration

in determining

whether or not the requirement of runningat least one passenger train a day may be relaxed. This pro~isicm is most Bmbiguotla,

however,

we interpret

it to mean that when the Cauaisaion finds that pablio convenience requiresthe contiuued service,

but that the cost of such service

will not pay for itself, the Ccmmissicm

must give greater weight to the public convenience in determining

whether it shouldpermit the relaxation

of ths one train a day requirement. Such a provision does not render SenateBill 100 unconstitutional on its face.
The railroads

in the exeroi6e

of theirpubllo functions as oaannan carriers

are subjectto reasonable regulations

by the State. As au&, the railroads

ten be required

to furnish services and faoilities

reasonably adequateto satisfythe publicneeds. Such authority by the Statemay extend to requiring

the ruuningof trains in addition to those provided

by the carriereveu where thismay involve scune pecuniary

loss. See MisslssippiRailroad

Commission

v. Mobile and Ohio RailroadCo., 244 OS=
Under the 1925 statutes and court decisions relating

to the abandonment

of railroads

once in operation, it was well settledthat the Legislature

could require the railroads to continue

passengerservioe regardless

of loss in operation. See State V* Rnid, 0. and W. Ry 108 Tes. 239, 19lS.W. 5603 State Y. Sugarland R. Co., . co.,

163 S.W. 1047. III 1927 the Legislature amended

Article 6479 to providethat the Commission could, in its discretion, relax the requ-&sent as to passenger service by a certain

class of railroads. In 1933, the Legislature further

amended Article 6479 permitting passenger

serviceto be relaxed under conditions stated in the currentstatute.Honorable J. B. Walling,Page 3 @W-141)

Sinoe before1933 the Legielature oould require

daily passenger serviceregardleee

of whether the aervioe was profitable,

we are of the opinionthat the Legislature oau require the operation of daily passenger servioe

wheneverthe public oouveulence requiresit, providedthat the Railroad Is permitted

to make a reasonable profit ou its overalloperations.

As to the effect of an amendment providing

for trialde novo in appealsfrom orders of the Railroad CamDission

under this statute, such an smendmentwould

have no effect

whatsoever

upon appealsfron orders of the RailroadC-iesion under other statutes.

SenateBf9.1

lOC, seeking to amend Article 6479,V.C.S., in its present form is oonstitutional. The amendment

would require the Ccouni33sion

to give a greater

weight or priority to the consideration

of the public convenience than to the cost of rendering

such servioe

when the Camnission ,is seekingto detennine

whether or not to relax the requirement of operating at least one passenger train a day. Appeals trial de novo under thfr, ststrte

would have no effeot whatsoever

upon appeals from orders of the Railroad Ccsuuis~ion

under other statutes.

WILL WIISON Attor#vy

Generalof Texas

APPROVED: OPIIVION

Cm:

James 18.

Ludlun,Chairmen WaylandC. Rivers,Jr. JemesW. Wilson Robert 0. Smith

RRVIEWDFORTEEATYORNRY GRNERAL BY: Gee. P. Blezkburn