Aun- ~~.TEXAS Dsrch 13, 1939

Honorable James IL Ulday Mreotor, Motor TransportationDiv. Hsrilroad

Coumissionof Texas Austin, Texas

Dear Sir: opinion No. O-05 Ret Udxility of motor oarrier for tax and Dlite-fees'during .time his oertifioatein litigation.i'.,: 77s are inreceipt of your request for an opinion'~oon6emingthe 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 filedby
same partj in the prdoeeding,ud'onDe6muber lQ;.lQ?Xthe C&m~issionpassed‘ amorder setting sside.fheorder,ofHuoh.29, 1934..'Wd TAnsferand Storage cQnPwY* 'II+, has suooessfullymaintained a suituphold$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 dismissedtiDuring l&e ~6%denoy of the suit, a t~DoruyinjtmotA.om protected lkld Transfer snd Storage Company, Inc., frcm the interferenae'ofths 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 operatingunder sn injunction, since the ihsuenoe of said order, or shouldue only aollsotfor the period from date of themt to be issued to&s end of the our-rent fiscalyear, as is the usuaLcustom uhen
a permit is fssued?'

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

~"Forthe purpose of defray%ng the e-se of &dministering this’~Aot,~ev&~~’
conunon oarriermotor ourier now regularly operating,~ or which shall herei,~ after regularly opetite in this &ate, shall'& the time of ~theissua&e-of
a 

### ~ertifloate

of 

### oome~eaoe snd.neoessity,unless othirrwiseprovided:herein, and nnmully thereafter, On or b&men September 1st and September 15tb of each orlendnryear, pry r'speoial fee of Ten~(#lQAO) DollUs, for each motor propelledvehiole operated or to~be oper+tedby suohmotor ~tirrierin the carriage of properbyc Yf the certificate of convehienaeand 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 oreditedto a fund tobe known and designated as the W&or Carrier Fund,* which fund is appropriated for the purpose of carrying out theterms of this Act, and out of which all warrants end expendituresnecessary in aaministering and enforcing this Act shallbe paidon

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

"It shall be unlavful for anymotor oarrier as hereinbeforedefined to opzate anymotor vehiclewithin this State unless there shall be displayed and firmly fixed upon the front and rear of suchvehicle an identificationplate to be furnishedby the Connnission. o 0 e It shallbe the duty of the Ccsmnission to providethose plates and eachmotor vehicle operating inthis State shall displaysuch plates as soonas the same arereceived and suoh plates shall be issued prmually thereafter and attaohed to eaohmotor vehiole not 

### laterthan September 1st of eaoh year, or as'soon thereafteras~possible0 The Cmmaission shallbe authorized to oolleatfrcusthe appliaent a fee of One~($l.OO) Dollar, for each pair of plates so issued,and all fees for such 'plates,shallbedeposited in the State Treasury to the credit of the 'Motor CarrierFund.1

"Itde&opsd'iq the law suitabove referred to that on Maroh 29, 1934, a valid and enforoeableorder, onethat has never been set aside,
was entered by the Railroad Ccmmissiondireotingth~~issuanos of a oertifioate. Section 17(a)'requiredthe 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 grantingthe oerbiflcatehad been a& aside, and its failure on that aocount to oolleot such specialfees mxzld not have the effect of dischargingWald Trensfer de Storage Ccmpsny*s liability therefore The Stats couldnot be thusly deprived of fees duekite-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 

### tenderof the amount of the indebtednessbe 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 tenderswere made. however. ne believe that a prosebution couldnot be suocessfullymaintained underArticle 1690-b of the Penal Code, which providesa 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 colleotedas a simple debt.Hon. James E. Eilday - Page 3 (O-05)

With reference to the fees of one dollar, however,which the Commissionis "authorized"to collect for each pair of licenseplates 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 inmaking or obtaining and issuingthe plates. If none was issued to~theHald Company during the period of the injunction, then no expensewas 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