Railroad Commission of Texas

Auqtin, Texas Gentlemen: Zinion'No. O-3485 :Concerning rates tobe charged by contract carriers and records tobe kept by them. 

### Inyour letter of April 25,

## 1941,you request our opinion (1) as to whether~contract carriers who transport goods for Montgomery-Ward Company are bound by law to observe a rate structure involving, as aminimum, the cummon carriers, and (2') the rates andratings .of whether they are required to keep records such asbills of lading andwaybills onwhich the articles transported are described and rated. You further tellua that "For the purposes of y,ur opinion, youmay use as a factual basfs the statements and contentions ofMr. Stallings which are set forth in the enclosed memorandum signed by our Mr. McNamee, Director of our Rate Division." The statements and contentions which you refer to are as follows: "1. That their contract carriers generally are limited under theirpermits to deliver,iesofmerchandise soldby their retail stores to their customers within thes,tore-tradingradius (usually 50 miles), to the homes andplaces designated by their customers for delivery of themerchandise; with the full privilege of picking up and returning such items as repossessed articles, exchanged merchandise, and merchandise returned to the store for credit; "2# That their contract carriers over any and allhighways, county necessary to reach the customers" delivery;
"30 That their contract carriers under their permits, operate roads, lanes and thelike, residences, or place of

have no designated routes or schedules which they can and do follow: "4- That their contract carriers deliver innearly all cases uncrated merchandise requiring inmany instances such specialized equipment as furniture\pads,:d:ollfeq hbiseg,:?ete,. ;'::~:Y~:~ :: :'.m,~ ,A;,. i; :):- .

Railroad Commission of Texas, Page 2, O-3485

"5. That their contract carriers must perform special services such as fnstalling stoves and furniture in the customers' homes; setting upa connecting 'andturning on electric refrigerators; laying linoleum, moving customers' furniture tomake room for the articles purchased from Montgomery-Ward and Company; 

### “6. Collecting the purchaseprice ofmerchandise on C.O.D. deliveries andmaking adjustments with customers; 

### “7. Checking merchandise tosee that it isnot scratched or otherwise damaged; removing dust or dirt before placing of the merchandise in customers' homes; 

### “8. That their contract carriers must act as representatives or agents ofMontgomery-Ward and Company in rendering many specialized services required in theefficient operation of retail stores; must be familiar with Montgomery-Ward and Company's methods of operation; 

### *9. That their contract carriers must make emergency deliveries: "10. .Thatvery few of their contract carriers have terminal facilities, the merchandise being loaded at theretail store orwarehouse where there areno scales for weighing the merchandise or facilities for crating, or specially handling themerchandise; "11. Themerchandise is delivered onbasis of the sales tickets given to the customer, upon general directi,onsfrom the store for each delivery, the articles being loaded SOthat they may be handled in order as the home orplace of delivery iS reached; "12. That the trucks of the contract carriers inmost instances have IMontgomery-Ward' painted on the sides in specified colors.

"In contrast with the service required of their contract carriers Mr. Stallings pointed out that the common carriers: "(a) Are interested only in over-the road hauls; "b) Do not render the specialized services above enumerated; "(c) Operate on regular or time schedules; "(d) Are not able orwilling tofollow radius operations as distinguished from over-the-road hauls; "(e) Do not have the specialized equipment that isnecessaryRailroad Commission ofTexas, Page 

### 3,0-3485

and donot haul shipments uncrated; "(f) Do not andwould not install themerchandise in the homes of their customers.a Section 6aa of Article glib, Vernon's Annotated Civil Statutes reads as follows: "The Commission ishereby vested with power and authority and it ishereby made itsduty toprescribe rules and regulations covering the operation of contract carriers in competition with common carriers over the highways of this State and the Commission shall prescribe minimum rates, fares, and charges tobe collected by such contract carriers which shall notbe less than the rates prescribed for co'zmnon carriers for substantially the same service."
Your first question was the subject of two opinions of the Attorney General addressed toHonorable ,C,V. Terrell, Chairman of theRailroad Coasaissionof Texas, dated February 4, 1932, and February 25,.1932, and with which opinions we substantially agree. From the first of those opinions we quote:
"I am of-the opinion that in fixingminimum rates'for contract carriers, the Commission is required to do so in relation to rates prescribed forboth rail and highway common carriers. Any other construction of the language in question would defeat the declared purpose of the Act. Not only was the law designed in the interest ofhighway safety and protection, but in order 'thatddscrimination inrates charged may be eliminated' and-!that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve thebest interests of the general public.s (See Declaration of Policy, Section 21 ofthe Act.)" -

_ In the second of such opinions, itwas said:
"It ismy opinion, therefore, andyou are so advised, that the Commission isprohibited from fixing lower contract carrier rates than the rates prescribed for common carriers for substantially the same service; and further, with the exception above pointed out, that such contract rates should notbe higher than, but identical with, the common carrier rates prescribed for substantially the same service.

"In view ofwhat has been said, it ismy opinion that the contract carrier must take the rate prescribed fo,rthe commonRailroad Commission of Texas, page 4, O-3485

carrier service most substantially similar. As stated above, whether this be the freight or express rate is a question of fact in each case.n Inview of the rather comprehensive treatment given the subject in those opinions we donot deem itnecessary to discuss your first question exhaustively. first question in the affirmative. 

### Weanswer

### your

We now pass to a consideration ofyour second question. In Section 4a ofArticle qllb it isprovided, among other things, that "the Commission ishereby vested with power and authority and it ishereby made its duty

. . .to require the filing of suchmonthly, annual and other reports and other data ofmotor carriers as the Commission may deem necessary, . . .and to supervise and regulate motor carriers in allmatters affecting the relationship between such carriers and thz ahipping.public whether herein specifioall~e~~~~o~~do;rA~~~~le A&;i;;; provision iscontained in Section 13b of said

### Actreads: "The Commission ishereby vested with power and authority and it 'ishereby made its duty to require allmotor carriers tokeep a set of accounts strictly in accordance with such classification of accounts and rules in respect thereto as may be established by the Commission and to filereports and such other data as the Commission may deem necessary, and which said accounts shall be open to the inspection of the Commission or its representatives at all times."
You have advised us that onApril 

### 1991933,theRailroad Commission of Texas made and promulgated the following general order "IT ISHERESY ORDERED by the Railroad Commission ofTexas that every truck-loan-and.less than truck-load shipment of freight transported by Motor Carriers between pointsinthis State shall be accompanied by a 'Waybill' showing a complete description of thefreight being=transported; the origin and destination thereof; thenamesind addresses of the shipper, consignee and issuing carrier, aswell as .theweight of the shipment and the rate being, or tobe assessed9 and on shipments, in the course of transportation ofwhich,are handled by two or more lines not under the samemanagement and control, the route ofmovement, including the names of theparticipating carriers and the point or points of interchange shall alsobe shown. Where two or more teucks are used to transport a single shipment, a separate waybill shall accompany each of such trucks and shall, with respect to that portion of the shipment loaded in or on suchRailroad Commission of Texas, page 5, 

### 0-3485

truck,,show al3 information herein provided and in addition thereto, shall bear specific reference to thebill of lading covering the entire shipment. A combination waybill and freight (expense) bill will be considered as in full compliance with this order, provided all required information is shown. "Effective May 

### 1901933,subject to further orders of the Commission." The statute itself doesnot in specific terms require of such carriers tokeep and have records such asbills of lading or waybills on which the articles transported are described and rated. However, it is our opinion that inmaking the order ofApril 

### 19,1933,the Railroad Commission was acting within the power thus given it in the Motor Carrier Act and that such order thereafter had and now has the force and effect of a statute. In answer to your second question we beg to advise that in our opinion contract carriers may be required to abide by the terms of the general order ofApril 

### 19$1933.
Yours very truly ATTORNEY GENERAL OF TEXAS s/Glenn R. Lewis

_ BY Glenn R, Lewis APPROVED JUNE 6, 

### 1941 A,ssistant s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL
GRL:LM/cg APPROVED OPINION COMMITTEE By BWB, Chairman