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 servioe on 

railroada. 

This is in euswer to your requeet for au opiuion frau 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 shall be the duty of the C~mnission to see that 

upon each railroad in 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 after notice and hearing, relax such requirement 

as to auy railroad, or part, portion or 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 ruuuing of 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 

portion or brauoh thereof, passenger service as frequeut as 

one train each day, Sundays excepted, 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 employed iu the rendition of such 

servicej provided, however, that public convenience shall 

always be a superior consideration in detenuiuiug whether or 

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, portion or bran& thereof, when, in 

its opinion, public convenience permits of such relaxation, 
. . 

_ .I 

Honorable J. B. Walling, Page 2 (WW-141) 

and shall relax such requirement when it appears upou suoh 

hearing that the ruuuiug of oue train each day, Sundays 

excepted, is not necessary in the rendition of adequate 

service to the public, or that on any railroad, or part, 

or portion or branoh thereof, passenger service as frequent as one train each day, Sundays excepted, with the 

passenger traffic offered and reasonably to be expected, 

doss not and will not pay the cost of such service plus 

a reasonable return upon the property employed in the rendition of 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 permite or where such service,is not necessary in the rendition of adequate service to 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 running at 

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 requires the 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 should permit 

the relaxation of ths one train a day requirement. Such a provision does 

not render Senate Bill 100 unconstitutional on its face. 

The railroads in the exeroi6e of their publlo functions as oaannan 

carriers are subject to reasonable regulations by the State. As au&, the 

railroads ten be required to furnish services and faoilities reasonably 

adequate to satisfy the public needs. Such authority by the State may extend to requiring the ruuning of trains in addition to those provided by 

the carrier eveu where this may involve scune pecuniary loss. See Misslssippi Railroad Commission v. Mobile and Ohio Railroad Co., 244 OS= 

Under the 1925 statutes and court decisions relating to the 

abandonment of railroads once in operation, it was well settled that 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 provide that 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 service to be relaxed under conditions 

stated in the current statute. 
Honorable J. B. Walling, Page 3 @W-141) 

Sinoe before1933 the Legielature oould require daily passenger 

service regardleee of whether the aervioe was profitable, we are of the 

opinion that the Legislature oau require the operation of daily passenger 

servioe whenever the public oouveulence requires it, provided that the Railroad Is permitted to make a reasonable profit ou its overall operations. 

As to the effect of an amendment providing for trialde novo in 

appeals from orders of the Railroad CamDission under this statute, such an 

smendmentwould have no effect whatsoever upon appeals fron orders of the 

Railroad C-iesion under other statutes. 

Senate Bf9.1 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 seeking to 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 General of Texas 

APPROVED: 

OPIIVION Cm: 

James 18. Ludlun, Chairmen 

Wayland C. Rivers, Jr. 

Jemes W. Wilson 

Robert 0. Smith 

RRVIEWDFORTEEATYORNRY GRNERAL 

BY: 

Gee. P. Blezkburn