OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Konorable James B. Ulday, Dlreotor 

Uotor Transportation L Irlaion 

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 

ame of *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 Lines 

Class 6 ?ermlt No. 6l.82, authorizing the aald 

Co., to operate a6 a Class B ;iotor carrier 

“within the btate of 1 i exam curd substantially tithln the turrltory 

es follo*s : In fine around I&CO, ‘iexas, and to and from all other 
Honorable James 5. Klldey, key 19, 1939, Page 2 

incorporated cities within the State of Texas." On March 3, 1932, 

Central Forwarding, Inc., filed its application for what we will 

call e Special Commodities Permit, end on &rch4, 1932, the Railroad 

Commission of Texas 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 to Viaco. 

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., corrected Permit Xo. 

12410, in which the Central Forwarding, Inc., was allowed to carry 

the same commodities over the same territory, but with the following 

restfictions: "The transportation of the following commodities la 

prohibited from one dealer to another: household goods and farm machinery; the transportation of oil field equipment is restricted to 

that transported to or from actual oil fields and the carrier is prohibited from transporting same from one dealer or refinery to another 

d,?aler or 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 this permit 

authorizes the transportation of the following commodities only: 

household goods, used office furniture end equipment livestock 

milk and farm machinery, rrom Deco to all points in {exas and &om 

all points in Texas to Vlaco. Oil field equipment to and from all 

points In Texas. The transportation of household goods, used office 

fu*nlture end equipment and farm machinery, 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 Is prohibited 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 to whether or not the Commission has authority to change Permit i;o. 12410 in order to remove 

the res%rictions and place the permit in conformity with 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, from which quotations ere taken 

es follows: "The 1931 law provided that those that were then operating under Class B Permits would be entitled to the appropriate kind 
Honorable James k. Kllday, May 19, 1939, Page 3 

0r new cartifioate. Class b. Permit No. 5182 which wee issued 

September 27, 1929, should properly have been Issued at that time 

In the name of Central Forwarding, Ino., but through error it wes 

lasued to Central Freight Lines, Inc. Special Commodity Permit 

No. 12410 was 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, issued without any restrictions In lieu of Class B Permit 

No. 5182. Through en error of the Commission the restriction was 

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 away when it issued the Permit oomplying with the law of 1931. The Speoial Commodity Permit No. 

12410 was issued without any notioe to anyone and, therefore, we 

submit that the Railroad Commission had the right to correct the 

mistake es above set out, which.was made when issuing same without 

giving notice. In other words, if notice is necessary for the correction of a mistake, it certainly would have been necessary in the first 

instance, and if it were not necessary in the first instance, it 

would follow, as a matter cf law, that it would not be necessary to 

correct e mistake made when the permits were being changed In order 

to comply with the emendmsnt of 1931." 

We, therefore, construe your question to be in substance 

v.hether the Commission has authority to summarily change the permit 

in the manner mentioned by you. 

House Bill No. 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 Carrier Kotor 

Carriere. The Class B Motor Carriers as defined in the 1929 Act correspond roughly to whet are now called Contract Carriers and Special 

Commodity Carriers. Scotlon 5 of that Aot provides that Class A 

permits oouldbe sold end transferred. Section 6a of that.Act prohibited the assignment of Class B permits. That Act contained no 

inhibition against the holder of a Class A permit also holding a 

Class B permit. 

In 1931 the Legislature enacted more comprehensive statutes 

relating to the regulation of motor carriers, the same being 

Article Bllb, Section 1 to 22. Section 6bb of.said Article 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 a 
Honorable James A. Iiiilday, Yay 19, 1939, ?age 4 

. 

oommon carrier may be transferred, but the statute contains no 

provision for the transfer of cny permit. Section 5 pro-lded for 

the issuance of Certificates of Convenience and liecesslty to those 

Rho were lawfully operating under such certificates at the tine that . 

Article 911b went into effect. However, said Article Bllb contains 

no such provision as the one last mentioned with reference to any 

type of carrier except the common carrier. 

Section Ba reads, in part, as follows: 

YJo motor oarrler now operating as a contract carrier 

or that r.ay hereafter desire to engage in the business of 

a ccntract carrier shall so operate until it shall have 

received a permit from the Commission to engage in such 

business and such p.zrmlt shall not be issued until the 

applicant shall have in all things complied with the requirements of this Act; nor shall such penit be issued unless 

the character of business being done or to be done by the 

applicant strictly conforms with the definition of a contract carrier.” 

Section 60 reads as follows: 

“No application for permit shall be granted by the 

Cormmission until after a hearing nor shall any such permlt be granted if the Commission shall be of the opinion 

that the proposed operation of any such contract carrier 

will impair the efficient public 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 

State who may desire to continue in the business of a 

motor carrier shall rile an application for a permit or 

oertlfloate under the terms of this Act within thirty (a 

days after the effective date hereof and it shall be the 

duty of the Commission to determine such applications 

forthwith and such applicants may, subject to the provisions of this Act and to the orders, rules, rates and 

reguiations of the Commission continue to operate as motor 

carriers pending the determination by the Commission of 

such application.” 

Section 6d, as amended in 1931, reads, in part, as follows: 

“The Railroad Commission is hereby given authority 

to issue upon application to those persons who desire 

to engage in the business of transporting for hire over the 

highways of this State live stock, mohair, wool, milk, live 
Honorable James h. Kllday, kay 19, 1939, Page 5 

stock feedstuffs, houeehold goods, 011 field equipment, 

timber when in its natural state, farm maohinery and 

grain speoial permits upon such terms, conditions and 

rostrlctions as the Railroad Commission may deem proper, 

and to ma::e rules and regulations governing such operationa keeping in mind the protection of the highways 

and the safety of the traveling public; , . .n 

reads, 

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

in part, as roii0wt3: 

“The Railroad Commlsslon 1s hereby given authority 

to issue upon application to those persons who desire 

to engage in the 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, farm machinery, and grain 

special permits upon such terms, conditions, and reatrlctlons as the Railroad Commlaalon may deem proper, 

and to make rules and regulations governing such operations keeping in mind 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 carrier motor carrier at least since 

1929. In fact, you have handed us a file which shows that on 

September 16, 1929, the Railroad Commission Issued to the said 

Central Freight Llnea, Inc., Certlflcate so. 2303, being a Class A 

Motor Carriers’ temporary Certificate of Convenlenoe and Necessity 

and that on ~ebrualy 21, 1930, the same was declared permanent by the 

nailroad Commission. The file further shows that on August 22, 1931, 

the Railroad Comlaslon issued to the said Central Freight Lines, 

Inc., Common Carrier biotor Carriers’ permanent Certificate of Convenience and Necessity 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 class by itself. 

In view of the fact that Class B Permit No. 5182 was 

applied for by Central Zrelght Lines, Inc., it 1s clear that it was 

not any mistake on the part 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 1931 when 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 cormon 
Bonoreble Jamr:a L. nilday, L’ay 19, 1939, 3age 5 

oerrier SelTiCe, hntr81 r'Ol%erding, Inc., could clals no "grendfether” rights in a Certlflcate theretofore ovned end operated by 

CentrF.1 Freight L.lnes , Inc. , there being no transfer of the certl-. 

fioste or pcrmlt. ken If tb.ere had been a trenafer, or lf Centrel 

$relght ilnea , Ino., and Central Forxardlng, Inc., be considered as 

ene end the same (vrhioh v.8 think cannot be done) the sltuatlon 1s . 

ur;chan&ed . Central Porwardlng , Jnc . , accepted the permit issued to 

it, not appealing from the order of tbo Commlselon granting Certificate Ko. 12,410, v;hleh it could and should hsve done if not 

eetlafied. 

If this permit be 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 only permsnent advantage given 

by Article 9llb to a carrier who was in operation at the timethe 

ertlcle went into effect, was the advantage given to common carriers 

by -eotlon 5. Ttx only advantage given by bectlon 6c to the contract 

eerrler was that if he was lawfully operating as a Class 6 operator 

et the time aald statute sent into effect, then if he should file 

his a;plloatlon :‘or a permit or certificate v:ithiin thlrty (30) days, 

he should have the right to operate as a carrier pending the determlnatlon by the Coumlaalon of his application for 8 permit. Eoviever, 

this statute did not guarantee to him the permit even though he had 

been operating under e Class B permit at the tiue such article vient 

into effect. I!ls application m::lght be grar.ted or it r:lght be denied 

~rreapectlve or prior operations. The holders of ::uch permits bed 

no property right in the hlghuay3 and they had no vested right to 

operate thereon for private gain. The ieglalaturo could prohibit 

or ocndltlon the operation of Class B Fcrmlt Xo. 5152, or any other 

ermlt as it might see fit. 

!a 

C‘tevenson vs. Blnford, 53 Sup. Ct. Pep., 

1. ha:lro:ld Commlsalcn VS. 

(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 

thus placed in Permit Xo. 12410. The prooedure to be followed in 

emending thle permit would be the procedure followed in obtaining 

e new permit of the same nature. 

Yours very truly 

0RL:FG 

ByTiO~~j$O&~>AS 

Assistant 

Approved: Opinion Committee 

By i;.l..%. chairman