**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 

Konorable 

### JamesB. Ulday, **Dlreotor** Uotor Transportation LIrlaion kilroad commlsrion or Texas **Austin,** Taxi38 Dear Sir:

41 ara in Zay 2, 1930, *herein you outline the followln,c

s issued .leptezber should prcparly ameof *Contra1 it was lsrusd to Themmiter, spaolsl Comcntly or arbitrarily ohm&ad to end froc which the operation

Brelght Lfne8, **Inc., filed**  Appilcatlon **NO.** 5182, ant en Joptombcr 27, 1929, the tillroad Commlesicn of Toras lersued to tho said Central

‘z-eight Llnea, inc., i;entrrrl Freight LinesClass 6 ?ermlt No. 6l.82, authorizing the aald Co., to operate a6 a Class B;iotor carrier

“within the btate of 1 i examcurdsubstantially tithln the turrltory es follo*s : In fine around I&CO, ‘iexas, **and** to and from all otherHonorable James 5. Klldey, key 19, 1939,Page 2

incorporated citieswithin the State of Texas." OnMarch 3, 1932, Central Forwarding, Inc., filed itsapplication for what we will call e Special Commodities Permit, end on &rch4, 1932, theRailroad Commission ofTexas issued to the seid Central Forwarding, Inc., Speoial Commodity Carrier Permit No. 12410,authorizing the holder to operate es a Special Commodity Carrier "within the state of Texas and with the territory as follows: It is especially understood and agreed that this permit authorizes the transportation of the following commodities only: Livestock,milk, household goods and farm msohinery. From: Waco to all points In Texas and from ail points in Texas toViaco. Texas." 011 field equipment:To and from all points in

On September 14, 1934, the Railroad Commission of Texas issued to the said Central Forwarding, Inc., correctedPermit Xo. 12410, inwhich the Central Forwarding, Inc.,was allowed to carry the same commodities over the same territory,butwith the following restfictions: "The transportation of the following commodities la prohibited from one dealer to another:household goods and farmmachinery; the transportation of oil field equipment is restricted to that transported to or from actual oil fields and the carrier isprohibited from transporting same from one dealer or refinery to another d,?aleror refinery, or from e dealer to a refinery or from a refinery to a deeler.n On June 22, 1937, the Railroad Commission of Texas issued to Central Forwerding, Inc., Special Commodity Carrier Permit No. 12410, authorizing operation es a special commodity carrier, as follows: "It is especially agreed and understood that thispermit authorizes the transportation of the following commodities only: household goods, used office furniture end equipment livestock milk and farmmachinery, rrom Deco to all points in {exas and &om all points in Texas toVlaco. Oil field equipment to and from all points InTexas. The transportation of household goods, used office fu*nlture end equipment and farmmachinery, is prohibited from one dealer to another dealer. The transportation of 011 field equipment is restricted to that transported to or from actual 011 fields end the carrier Isprohibited from transporting same from one dealer or refinery to another dealer or refinery, or from a dealer to a refinery or from a refinery or a dealer."

You request our opinion "es towhether or not the Commission has authority to change Permit i;o.12410 in order to remove the res%rictions and place the permit in conformitywith the original Class B ?ermit No. 5162."

In connection with your request,Honoreble Tom P. Scott 0r Kaco, Texas, Attorney for Central 'orwarding, Inc., has submitted to us a written argument and brief, fromwhich quotations ere taken es follows: "The 1931 law provided that those thatwere then operating under Class B Permits would be entitledto the appropriate kindHonorable James k. Kllday, May 19, 1939, Page 3

0r new cartifioate. Classb. Permit No. 5182 which wee issued September 27, 1929, shouldproperly have been Issued at that time In the name of Central Forwarding, Ino.,but through error itwes lasued to Central Freight Lines, Inc. Special Commodity Permit No. 12410was issued in lieu of Class B Permit No. 5182 and waa issued properly, es to n&me, to Central Forwarding, Inc.

...Central Forwarding, Inc., es a matter of law,was entitled to Permit No. 12410, issuedwithout any restrictions In lieu of Class B Permit No. 5182. Through en error of the Commission the restrictionwas placed in said substitute permit. Central Forwarding, Inc.,had a vested right in the Class B Permit, which through error of the Railroad Commission wes taken awaywhen it issued thePermit oomplying with the law of 1931. The Speoial Commodity Permit No. 12410was issuedwithout any notioe to anyone and, therefore,we submit that the Railroad Commissionhad the right to correct the mistake es above set out, which.wasmade when issuing samewithout giving notice. In otherwords, ifnotice is necessary for the correction of a mistake, it certainlywould have been necessary in the first instance, and if itwere not necessary in the first instance, it would follow, as a matter cf law, that itwould notbe necessary to correct e mistake made when the permits were being changed In order to complywith the emendmsnt of 1931."

We, therefore, construe your question to be in substance v.hetherthe Commission has authority to summarily change the permit in themanner mentioned by you.

House BillNo. 654, Chapter 314,page 698,General end Special Laws of Texas, Forty-first Legislature, hegular Session, 1929, pleoed motor carriers under the regulation of the Railroad Commission 0r Lexes, and divided the same Into two classes: The Class A Kotor Carriers were what may now be celled Common CarrierKotor Carriere. The Class B Motor Carriers as defined in the 1929Act correspond roughly towhet are now called Contract Carriers and Special Commodity Carriers. Scotlon 5 of thatAot provides that ClassA permits oouldbe sold end transferred. Section 6a of that.Act prohibited the assignment of Class B permits. ThatAct contained no inhibition against the holder of a ClassA permit also holding a Class B permit.

In 1931 the Legislature enactedmore comprehensive statutes relating to the regulation ofmotor carriers, the same being Article Bllb, Section 1 to 22. Section 6bb of.saidArticle 911b prohibits the granting of e permit to operate as e contract carrier to any person operating es a common carrier. Under Section 5, Certificates of Convenience end Necessity authorizing operation es aHonorable JamesA. Iiiilday, Yay 19, 1939, ?age 4

.

oommoncarrier maybe transferred, but the statute containsno provision for the transfer of cnypermit. Section 5 pro-lded for the issuance of Certificates of Convenience and liecessltyto those Rho were lawfully operating under such certificates at the tine that

. Article 911bwent into effect. However, saidArticle Bllb contains no such provision as the one lastmentionedwith reference to any type of carrier except the common carrier.

Section Ba reads, inpart, as follows:

YJomotor oarrler now operatingas a contract carrier or that r.ay

hereafter desire to engage in the business of a ccntract carrier shall so operateuntil it shallhave received a permit from the Commission to engage in such business and suchp.zrmltshallnot be issued until the applicant shall have inall things compliedwith the requirements of thisAct; nor shall suchpenit be issued unless the character of business being done or to be done by the applicant strictly conformswith the definition of a contract carrier.”
Section 60 reads as follows:

“No application for permit shallbe granted by the Cormmissionuntil after a hearing nor shall any suchpermlt be granted if the Commission shall be of the opinion that theproposed operation of any such contract carrier will impair the efficientpublic service of any authorized common carrier or common carriers then adequately serving the same territory;provided, howev-r, any person now lawfully operating as a Class *Bn operator in this Statewho may desire to continue in the business of a motor carrier shall rile an application for a permit or oertlfloate under the terms of thisAct within thirty (a days after the effectivedate hereof and it shall be the duty of the Commission to determine such applications forthwith and such applicantsmay, subject to the provisions of thisAct and to the orders, rules, rates and reguiations of the Commission continue to operate asmotor carriers pending the determinationby the Commission of such application.”
Section 6d, as amended in 1931, reads, in part, as follows:
“The Railroad Commission ishereby given authority to issue upon application to thosepersons who desire to engage in the business of transporting for hire over the highways of this State live stock, mohair,wool, milk, liveHonorable James h. Kllday, kay 19, 1939,Page 5

stock feedstuffs,houeehold goods, 011 field equipment, timberwhen in its natural state, farmmaohinery and grain speoialpermits upon suchterms, conditions and rostrlctionsas the Railroad Commissionmay deem proper, and toma::erules and regulationsgoverning such operationa keeping inmind the protection of the highways and the safety of the travelingpublic; , . .n

reads, Section Bd, as amended in 1937, and as it now exists,

in part, as roii0wt3:
“TheRailroad Commlsslon 1s hereby given authority to issueupon application to thosepersonswho desire to engage inthe business of transporting for hire over the highways of this State, livestock,mohair, wool, milk, livestock, feedstuffs, household goods, 011 field equipment, and used office furniture and equipment, tlmber when in its natural state, farmmachinery, and grain specialpermits upon such terms, conditions, and reatrlctlons as the Railroad Commlaalonmay deem proper, and tomake rules and regulations governing such operations keeping inmind the protection of the highways and the safety of the traveling public;

. . .*

It 1s our understanding that Oentral Freight Lines, Inc., has been operating as a common carriermotor carrier at least since 1929. In fact, you have handed us a filewhich shows that on September 16, 1929, the Railroad Commission Issued to the said Central Freight Llnea, Inc., Certlflcateso. 2303, being a ClassA Motor Carriers’ temporary Certificate of Convenlenoe and Necessity and that on ~ebrualy 21, 1930, the samewas declared permanent by the nailroad Commission. The file further shows that on August 22, 1931, the Railroad Comlaslon issuedto the said Central Freight Lines, Inc., Common CarrierbiotorCarriers’ permanent Certificate **of** Convenience andNecessity No. 2627, in lieu of said Class A Certificate No. 2363.

It la immaterial for the purpose of this inquiry whether a special commodities carrier be classed as a common carrier, a contract carrier, or in a classby itself.

In view of the fact that ClassB Permit No. 5182 was applied for by Central Zrelght Lines, Inc., it 1s clear that itwas not any mistake on thepart of the Railroad Commission that Permit
NO. 12410 was issued to Central Freight Lines, Inc., instead of to Central Forwarding, Ino. Central Forwarding, Inc., appeared as a stranger in 1931when it filed its application resulting in, the issuance of Permit No. 12410. Even if such permits be regarded es in the nature of certificates authorizing a limited kind of cormonBonoreble Jamr:aL. nilday, L’ay19, 1939, 3age 5



## oerrier SelTiCe, hntr81 r'Ol%erding, Inc., could clals no "grendfether” rights in a Certlflcate theretofore ovned end operated by CentrF.1Freight L.lnes ,Inc.,there being no transfer of the certl-. fioste or pcrmlt. ken If tb.erehad been a trenafer, or lf Centrel $relght ilnea,Ino., and Central Forxardlng, Inc.,be considered as ene end the same (vrhioh v.8think cannot be done) the sltuatlon 1s
. ur;chan&ed

. Central Porwardlng, Jnc

.,accepted the permit issued to it, not appealing from theorder of tbo Commlselon granting CertificateKo. 12,410, v;hlehit could and should hsve done if not eetlafied.

If this permitbe reFarded as a contract oarrlar permit, or in a class to lts<?lf, an additional ground exists for our holding herein. As already noted herein, the onlypermsnent advantage given byArticle 9llb to a carrierwho was in operation at the timethe ertlclewent into effect,was the advantage given to common carriers by -eotlon 5. Ttx only advantage given by bectlon 6c to the contract eerrlerwas that if he was lawfully operating as a Class 6 operator et the time aald statutesent into effect, then if he should file his a;plloatlon :‘or a permit or certificate v:ithiin thlrty (30)days, he should have the rightto operate as a carrier pending the determlnatlon by the Coumlaalon of his application for 8 permit. Eoviever, this statute did not guarantee to him thepermit even though he had been operating under e Class B permit at the tiue such article vient into effect. I!lsapplicationm::lght be grar.tedor it r:lghtbe denied ~rreapectlve or prior operations. The holders of ::uch permits bed
noproperty right in the hlghuay3 and they had no vested right to operate thereon for private gain. The ieglalaturo could prohibit
orocndltlon the operation of Class B FcrmltXo. 5152, or any other ermlt as itmight see fit. !a C‘tevensonvs. Blnford, 53 Sup. Ct. Pep., 1. ha:lro:ldCommlsalcnVS. (2dj 290. Inter-City Zorwardlng Company, 57 J.,.

Gur answer to your c.ueation,therefore, 1s that the bailrosd Com;::isslon

can not summarily renove the restrictions which were thusplaced in Permit Xo. 12410. The prooedure to be followed in emending thle permitwould be theprocedure followed in obtaining enew permit of the same nature.
Yours very truly

0RL:FG ByTiO~~j$O&~>AS

Assistant Approved: Opinion Committee

By i;.l..%.

chairman