Aun- ~~.TEXAS 

Dsrch 13, 1939 

Honorable James IL Ulday 

Mreotor, Motor Transportation Div. 

Hsrilroad Coumission of Texas 

Austin, Texas 

Dear Sir: opinion No. O-05 

Ret Udxility of motor oarrier for 

tax and Dlite-fees'during .time his 

oertifioate in litigation. 

i'., : 

77s are inreceipt of your request for an opinion'~oon6eming the followiag factsr On Maroh 29,,lQ34, the Brilroad: CdnmbriIon'ps~Wdan order granting to Wald~Tzrssfer snd Storage Cc&any, Ld.; X o&non b&rier motor oarrier 

oertifiats. On the'21st d&y thereafter *:inotion,for rb~hetiing~w filed by 

same partj in the prdoeeding, ud'onDe6muber lQ;.lQ?Xthe C&m~ission passed‘ 

amorder setting sside.fhe order,of Huoh.29, 1934..'Wd TAnsferand Storage 

cQnPwY* 'II+, has suooessfullymaintained a suit uphold$ng the ireuauoe~ of 

the oertifio&e on Xaroh 29;1954; and deolorlag Iirvalid~the orderof Deognher lQ,,l934i Bmitkvi mid Traasfer &'Storage'C&, 97 S& (2d) 991. errors 

dismissedti During l&e ~6%denoy of the suit, a t~DoruyinjtmotA.om protected 

lkld Transfer snd Storage Company, Inc., frcm the interferenae'of ths Coumission. You ask the following question:'. 

*If theCmmuission issues a pennit upon.the original.order referred to 

herein,.shouldthe 8ppLLoant be required to paytax tid plate.fees'forthe 

years he has beea operating under sn injunction, since the ihsuenoe of said 

order, or should ue only aollsot for the period from date of the mt to 

be issued to&s end of the our-rent fiscal year, as is the usuaLcustom uhen 

a permit is fssued?' 

ArfAole 9116; Sec. 17(A), reads in part is followsr 

~"For the purpose of defray%ng the e-se of &dministering this’~Aot,~ev&~~’ 

conunon oarrier motor ourier now regularly operating,~ or which shall herei,~ 

after regularly opetite in this &ate, shall'& the time of ~the issua&e-of 

a ~ertifloate of oome~eaoe snd.neoessity, unless othirrwise provided:herein, and nnmully thereafter, On or b&men September 1st and September 15tb 

of each orlendnr year, pry r'speoial fee of Ten~(#lQAO) DollUs, for each 

motor propelled vehiole operated or to~be oper+ted by suoh motor ~tirrier in 

the carriage of properbyc Yf the certificate of convehienae and neaeseity 

herejn referred to is issued after the month of September of~auy year, the 

fee paid shall be prorated to the .rknaining portion of the year ending 

August 31st following, but in no case less than one-fourth (l/4) the snnual 

~fee. 6 . .* 
Ron. Jsmes E. Kilday - Page 2 (O-05) 

Article Sllb, Sec. 17(o) reads as followsa 

"All fees except the fee provided in Section 5 of this Aotaocruing under 

the terms of this Aot shall be payable to the State Treasury at Austin and 

oredited to a fund tobe known and designated as the W&or Carrier Fund,* 

which fund is appropriated for the purpose of carrying out the terms of 

this Act, and out of which all warrants end expenditures necessary in aaministering and enforcing this Act shall be paidon 

Article Sllb, Sec. 16, reads in part as follows8 

"It shall be unlavful for any motor oarrier as hereinbefore defined to opzate any motor vehicle within this State unless there shall be displayed and 

firmly fixed upon the front and rear of such vehicle an identification plate 

to be furnished by the Connnission. o 0 e It shall be the duty of the Ccsmnission to provide those plates and each motor vehicle operating inthis State 

shall display such plates as soon as the same are received and suoh plates 

shall be issued prmually thereafter and attaohed to eaoh motor vehiole not 

later than September 1st of eaoh year, or as'soon thereafteras~ possible0 

The Cmmaission shall be authorized to oolleat frcus the appliaent a fee of 

One~($l.OO) Dollar, for each pair of plates so issued, and all fees for such 

'plates,shall bedeposited in the State Treasury to the credit of the 'Motor 

Carrier Fund.1 

"It de&opsd'iq the law suitabove referred to that on Maroh 29, 

1934, a valid and enforoeable order, one that has never been set aside, 

was entered by the Railroad Ccmmission direotingth~~issuanos of a oertifioate. Section 17(a)'required the payment of a speoial fee thenwad 

annueJ.ly thereafter on eaoh vehicle operated under-the oerbifioate. The ' 

erroneous belief on the part of the Conmission that the aider granting the 

oerbiflcate had been a& aside, and its failure on that aocount to oolleot 

such special fees mxzld not have the effect of discharging Wald Trensfer de 

Storage Ccmpsny*s liability therefore The Stats could not be thusly deprived 

of fees due kite- The Weld C~pany received all the~privileges of authorised 

O-W carriermotor cat-rim, and not having pafd such speaial fees, still 

owes the seme# and it is the duty of the &mmission to colleot the same0 

Although a tender of the amount of the indebtedness be made and refused, 

suoh unaccepted tender does not discharge the prinoipal obligation, 

Hoskins v. Dougherty, 69 S& 1033 Poff v. Kller, 235 S.K 570, 26 R.&L* 

648. Since tenders were made. however. ne believe that a prosebution 

could not be suocessfully maintained under Article 1690-b of the Penal Code, 

which provides a penalty for anyone violating the provisions of Article Qllb.~ 

Furthermore, sinoe the years for whiah the usual fees were due have passed 

without collection of the fees, and under suoh circ~stances whioh excused 

the payment of the esme as theyfell due, we do not believe that a forfeiture 

of the Wald Ccmpany~s oertifioate could be had for Mlure to pay the samee 

In our opinion, such spsoial fees whioh are due for the period of the injunction should be colleoted as a simple debt. 
Hon. James E. Eilday - Page 3 (O-05) 

With reference to the fees of one dollar, however, which the 

Commission is "authorized" to collect for each pair of license plates 

issued, we reaoh a different conclusion. That fee is a small one,, 

evidently intended to result in no profit to the State, l&merely to 

defray the actual expense incurred by the State in making or obtaining 

and issuing the plates. If none was issued to~the Hald Company during 

the period of the injunction, then no expense was caused to the State in 

this regard* Our conolusion is that the Coxnission is not entitled to 

collect from ?Wd Transfer end Storage Company, Inc.,, plate fees for the 

time inquired about. 

Yours wry truly 

ATTORNEY GEWRAL OF TEXAS 

By /s/Glenn R. Lswis 

zz:d C.&nn 

ATToRSSYGENERALOFTRXAS 

Glenn R. iewis 

Assistant