The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-02-09

.ieai 'uat tne plaintins Improvement COM
l1ny' are railroad company. and that the
roan Is railroad. that 1t is not deemed
necessary to pursue the argument" IRAN
dolph VS.. Port, 30 L. s.. 5O2D
NOT, IN my judgment, does the fact that
the respondent has failed to operate this
railrcad affect the question unless It be
10 emphasize the proposition that in its
use II not technically In its construction
1t is railroad. As shown by the facts,
every railroad entering the city OF Calves
ton transports traffic over this railroad to
all inten,s and purposes and in SO far as
the public generally is concerned, as free
ly and unreservedly as II they had them
serves constructed, owned and maintained
the road. Chicago Dock and Canal com.
| pany VS.. Clarity ct al, ll5 H., l55, and
| authorities there cited.
Again recurring to the section of the
Constitution quoted; Tho legislature shall
| pass laws to regulate freight and passenger
tariffs on the different railroads in this
Statn'-that is, on all the railroads. No
analysis OF this language can make the
meaning palmer or purpose clearer than IL
| appears IN The original statement 1t seems
to me that IT can not be seriously uues-
| toned that this railroad is a railroad that
| is public highway--and, too, that char
acter of public highway on which the
| legislature Is commanded to regulate freight
and passenger tariffs.
| Article 1852. Revised Statutes. specifying
| we ipNtT, authority ana duty oil the tall-
| road commission, is as follows
| The power and authority is hereby ,tst-
| ed IN the railroad commission Of Texas. and
| 1t is hereby made its duty, TO ABORT all
necessary rates. charges and regulations to
| govern and regulate railroad freight and
passenger tariffs the power to correct
| abuses and prevent unjust discrimination
and extortion In the rates Of freight and
passenger tariffs on the different railroads
| in this state and to enforce the same by
| having the penalties inflicted Ms by this act
prescribed through the proper courts hav-
| ing iursdction.' ~
| The language Is In substance a repro
| duotion of article 10. section ?. of the Com
| stituton. and II is manifest that whatever
| authority and power was by the Constitn-
| tion vested In the legislature aud whatever
| duty with which it Is charged has 'on
committed to the railroad commission and
that 1t IS our duty so regulate tho freight
| and passenger tariffs on The Wharf com
| panv railroad unless we are restrained by
| virtue of an exemption found IN subdivision
| |. article $3.50. Revised Statutes, which
provides that this cliarter-the railroad
! act-"shall not apply TO street railways nor
suburban or belt lines Of railways in or
near cities or towns lThc compress case
recently decided by the supreme COURT
On the hearing 1t was urged that the
| railroad In question is belt line of rail-
wav aud therefore exempt from the juris
|
have been unable to find any loyal
| definition of the term "holt or suburban
line Of railway" and what Is meant by those
terms as used In the commission act 1t
seems to me Is 10 he nscertaincd by con-
sidering other acts Of the same Legislature
bearing on the question. the history Of
| railroads In the State at that time, and the
general and ordinary use to which The
| terms were then applied; the evils sought
to be remediod by creating the commits
sion and what were the wholesome results
to be accomplished by virtue of the OK
emption.
These terms when applied to n railroad dc
not affect the status of the road. In the
broad sense it remains a railroad perform
ing all the functions of a common carrier
and governed entirely by all general laws
pertaining to railroads and common car
riers and from the view ] entertain 1t /!
not necessary 10 determine whether or no
the railroad under consideration may prom
erly belong to the class denominated bel
or suburban lines of railway.
am of the opinion that the Legislature
meant to relieve the commission from th'
duty of regulating that class OF railway
constructed in pursuance of the terms o
subdivision 81 chapter 10l title privat
Corporations Act. 1891, which authorize
the formation Of private corporations TO
the purpose of Constructing, acquiring
maintaining and operating street sailway
and suburban belt lines of railways With
and near cities and towns. which may ais
construct and operate union depots. bl
no street railway company shall ever b
exempt from the payment OF assessment
that may be legally levied or charged
against it for street improvements.
That provision of the foregoing act witt
reference to belt or suburban lines OF rail
ways was first enacted in 1881, at the sam
session of the legislature when the railroa
Lon les mi q
emption in the commission act evidentl,
referred to the character of railway to b.
constructed in pursuance OF subdivision Il
Prior to that time no provision wa
made in any statute in terms authori2inj
| the construction of belt Or suburban line
of railway and yet it will not be questioned
that authority did already exist under thu
general railroad law to form corporations
to construct a railroad which could per
form functions such as would justify
| classification as a belt or suburban lin
of railway. This view is strengthened b,
the act passed in 1889 amending the gen
| eral railroad Incorporation law wherein
certain Restrictions and provisions are mad
when a railroad is a suburban railroad
Evidently IT, was assumed that authority al
ready existed to form a corporation to con
struct such a road. Again. prior to thu
act of 1891 subdivision 81 provided for th
construction OF street lines of railway an
to own and operate street car lines OF rail
WAYS on the highways beyond the cit,
limits and in the suburbs. In other words
by strict construction OF subdivision 81
prior to 1891. the street car lines OF rail
road were TO be confined TO the limits o
the municipality. Article 10, section
Of the constitution coptemplates that pro
vision would be made for the formation b.
the legislature Of corporations to buil'
street lines OF railway beyond the limits o
municipal corporations and | am of tn
) opinlon that this was the sole purpos
of the amendment TO subdivision 81 adopte'
in 1891 Section 81, page rs, Booths ST
Railway Law.
At the time OF the passage OF these acts
the terms belt or suburban lines OF rail
, way In their ordinary use and application
! had reference only to that class OF rail
ways performing the functions OF a stree
line Of railway. and while that would no
change or modify the status Of RAILROAD
or the class TO which II might belong, /
is persuasive TO my mind in seeking III
legislative intent
Al the sane session of the legislature
lS9i-another act was adopted that to IN!