Untitled Texas Attorney General Opinion ( 1957 )

OBEY GENERAL
OFTEXAS .
December 20, 1957
Honorable Olin Culberson Opinion WW-328
Chairman, Railroad Commission of Texas
Austin, Texas Re: Railroad Commls-
sion jurisdiction
of motor carrier
and motor bus
operations over
Dallas-Fort Worth.
Dear Judge Culberson, Turnpike.
We are in receipt of your letter of October 22,
1957, wherein you request our opinion on the following
questions:
"1 . Is the Dallas-Fort Worth Turnpike and
the use of it for hauling for hire under the
jurisdiction of the Railroad Commission a8 is pro-
vided by Texas Civil Statutes, Article glib?
"2. Is It necessary for any person operating
a truck and hauling for hire to have a certificate
of authority from the Railroad Commission to
engage in such activity?'
as well as another letter from you dated October 22, 1957,
in which you ask the following additional question, which
we designate as No. 3, to-wit:
“3. Is it necessary for the operator of a
bus in the Dallas-Fort Worth area to have a permit
from the Railroad Commission authorizing him to
operate over the Dallas-Fort Worth Turnpike under
Texas Civil Statutes, Article glla?"
You state that the Railroad Commission of Texas is
confronted with a growing situation with reference to
transportation for hire in the area between Fort Worth,
Arlington, Orand Prairie and Dallas on the new Dallas-Fort
Worth Turnpike; that the-city limits of each of the above
named cities are contiguous to each other with the excep-
tion of a small area on the Fort Worth end, where the Turn-
pike from the Dallas direction has already traversed about
three and one-half miles within the Incorporated city of
Fort Worth, then goes into an unincorporated area for about
two miles, and again enters the incorporated limits; and
that the city limits of each of the adjoining and oontlguous
Honorable Olin Culberson, Page 2 WW-328
cities have been extended in most instances to the north
line of the right-of-way of the Dallas-Fort Worth Turnpike,
so as to include the Turnpike within the limits of the
respective cities.
While you have submitted the questions with
reference to motor carrier transportation separate from the
question as to motor bus transportation, we have considered
that the questions submitted should be disposed of In one
opinion since they deal with related subjects.
The authority of the Railroad Commission of Texas
to regulate motor carrier operations over the public hlgh-
ways of this State Is found in Article glib of Vernon's
Civil Statutes of Texas, as amended. Prior to the passage
of the Texas Turnpike Statute (Article 6674V,) the answer to
the first two questions above listed would be made to depend
on the construction of the term "motor carrier" as that
term is defined in Article glib, Section 1, subparagraph
(id9 wherein it is stated:
"The term 'motor carrier' means any person,
firm, corporation, company, co-partnership, associ-
ation or joint stock association, and their lessees,
receivers or trustees appointed by any Court
whatsoever owning, controlling, managing, operating
or causing to be operated any motor-propelled veh-
icle used in transporting property for compensation
or hire over any public highway in this State,
where in the cburse of such transportation a high-
way be~tiveen
two or more Incorporated cities, towns,
or villages is traversed; provided, that the term
'motor carrier" as used in this Act shall not
include, and this Act shall not apply to motor
vehicles operated excluslve~lywithin the incorpoP-
ated limits of cities or towns."
The authority of the Railroad Commisslon’of Texas.
to regulate motor bus'transportation over the public hlgh-
ways of this State is found in Article glla of Vernon's
Civil Statutes of Texas, as amended. Prior to the passage
of the Texas Turnpike Act above mentioned, the answer to
the third question above listed would depend on the con-
struction of a "motor bus company" as that term is defined
in Article glla, Section 1, subdivision (c), wherein it Is
stated:
"(c) The term 'Motor Bus Company' when used
in this Act means every corporation or persons as
" herein defined, their lessees, trustees, receivers,
or trustees appointed by any court whatsoever,
owning, controlling, operatlng or managing any
Honorable Olin Culberson, Page 3 ~~-328
motor propelled passenger vehicle not usually
operated on or over rails, and engaged in the
business of transporting persons for compensa-
tion or hire over the public highways within
the State of Texas, whether operating over fixed
routes or fixed schedules, or otherwise; pro-
vided further, that the term 'Motor Bus Company'
as used in this Act shall not include corpora-
tions or persons, their lessees, trustees, or
receivers, or trustees appointed by any court
whatsoever, insofar as they own, control, operate,
or manage motor propelled passenger vehicles
operated wholly within the limits of any incor-
porated town'or city, and the suburbs thereof,
whether separately incorporated or otherwise."
Under these definitions of a "motor carrier"
and "motor bus companyU, the jurisdiction of the Railroad
Commission over transportation for hire over the Dallas-
Fort Worth Turnpike would turn on whether the Turnpike is
and whether the provisos in Art. glib,
Art. glla, Section l(c) which exclude
strictly local operations from the statutory definition
of a motor carrier and motor bus company, re,sp;ctd$;y,
are applicable to the operations involved.
Turnpike Act, however, authorizing the construction of
the Dallas-Fort Worth Turnpike, specifically covers this
subject matter and clearly confers jurisdiction of
transportation for hire over the Turnpike to the Railroad
Commission. This Act,~now carried as Article 6674V,
Vernon's Annotated Civil Statutes (House Bill 4, chapter
410, Acts, 53rd Legislature, Regular Session, page g67),
provides in Section 4(c) thereof as follows:
"Provided, however, any 'Project' or
'Turnpike Project' which the Authority may con-
struct under the authority of this Act shall at
all times be deemed a public highway within the
meaning of Chapter 270, page 399, Acts, Fortieth
Legislature, 1927, as amended, by Chapter 78,
page 196, Forty-first Legislature, First Called
Session, 1929, and Chapter 314, page 698, Acts,
Forty-first L-eislature, 1929, as amended by Chap-
ter 277, page &80, Acts, Forty-second Legislature,
1931, as amended by Chapter 290, page 463, Acts,
Forty-seventh Legislature, 1941, and to that end
no motor bus company, common carrier motor
carrier, speciallzea motor carrier, c0rrePgct
carrier or other motor vehicle operation POr
compensation and hire shall be conducted thereon
except in accordance with the terms and Provisions
of Chapter 270, page 399, Acts, flortlethJ-egls-
ntii
a ure, 1 , page 196,
Honorable Olin Culberson, Page 4 WW-828
Acts, Forty-first Legislature, First Called
Session, 1929, and Chapter 314, page 698, Acts,
Forty-first Legislature, 1929, as amended by
Chapter 277, page 480, Acts, Forty-second
Legislature, 1931, as amended by Chapter 290,
p&T .~6~~~~~~~s~~~~dS~venth Legislature,
The Acts of the Legislature referred to in the
above Article are Articles 911a and qllb, and Vernon's
Ann. P.C. Articles 16goa and 16wb.
Considering the Texas Turnpike Act in conneation
with the Texas Motor Bus Act and the Texas Motor Carrier
Act, we answer each of the three questions above listed in
the affirmative. The language of the Legislature in the
above quoted portion of the Turnpike Act clearly evidences
a legislative Intent that all operations for hire over
any turnpike constructed under the provisions of that Act
are operations over a public highway "within the meaning"
of the Motor Bus and Motor Carrier Acts, and that a motor
bus or motor carrier certificate or permit is required
to conduct any operations for compensation and hire over
all or any part of such turnpikes.
We are of the further opinion that even
without the specific provisions of the Turnpike Act quoted
above, the answers to your questions would be in the affirm-
ative. A person operating a motor truck for hire from
Dallas to Fort Worth, under the facts stated, necessarily
traverses a highway between two incorporated cities and
such vehicle Is not operated exclusively within the lncor-
porated limits of cities or towns, and he is thus a motor
carrier as that term is defined In Art.gllb, Section l(g).
Similarly, a person engaged in transporting persons for
hire by motor bus from Dallas to Fort Worth Is a motor bus
company as that term is defined in Art. glla, Section l(c),
as such passenger vehicle is not operated wholly within
the limits of any incorporated city or the suburbs thereof.
Some question might arise under Article glib as
to whether motor carrier operations between the other
cities on the Turnpike are excluded from the Jurisdiction
of the Commission because the cities are contiguous. ThiS
department has had occasion to construe the Motor Carrier
Act, and specifically Section l(g), on various occasions.
In opinion No. O-1592 an exhaustive review of the legisla-
tive history of Section l(g) is set forth, including the
definition of a motor carrier as oontained In the 1929
Act and the committee recommendations, House and Senate
amendments and committee reports on the 1981 Act, which
among other changes not here pertinent, amended the defin-
ition of a motor carrier to its present form. This opinion,
-
Honorable Olin Culberson, Page 5 W-328
and other opinions on this subJect such as opinions No.
O-1497, No. O-3449 and 0-3449-A, and No. O-3535, uniformly
hold that the Railroad Commission does not have jurisdic-
tion over transportation from an incorporated city or town
to an unincorporated town or area, where there are no
incorporated towns between the two, since no portion of
the transportation or route Is between or through two or
more incorporated cities; but if the route passes into or
through a second incorporated city, then such transporta-
tion is under the jurisdiction of the Commission.
In none of these opinions, nor In any part of
the Motor Carrier Act, do we find anything to Indicate
that the distance between the Incorporated city and the
unincorporated town or the distance be~tweenthe two incor-
porated cities or the contiguity of each to the other
determines the jurisdiction of the Railroad Commission.
It;is true that the use of the word between In
the phrase . . .where in the course of such transportation
a highway between two or more incorporated cities, towns
or villages is traversed" could be argued as denoting or
requiring an intervening space or distance between the two
cities. Such a strict construction is not in keeping with
the overall purposes of the Act. In Texas Turnpike
Authority v. Sheppard, 279 S.W.2d 302 (Sup. Ct., 1955),
the Court disposed of a contention that the bond Issue ,
approval was properly refused because the Turnpike Author-
ity was not empowered to build the toll road from a point
within the city of Fort Worth to a point within the city
of,Dallas, because the statute authorized and direated the
construction of a toll road between "the two cities," by
stating:
"As used in its literal sense the word
'between' usually denotes an intervening space
or distance between two objects and has the effect
of excluding the boundaries. Blackstone(s La
ictlonary, 1 5 , p. 833 Louisville & N.R. Cow v
Loyd, 186 Ala. 119, 65 So. 153; City of Philadell
phia v. Citizens' Pass. Ry.Co., 151 Pa. 128, 24
A. 1099. However, from a construction of the
entire Act we think the word was not used by the
Legislature in an exclusionary sense or to pro-
hibit the construction of the toll road partly
within the limits of the two cities. Rather the
word designates the termini of the route. . . .
"If the construction of the road was limited
to begin at the boundary line of one city to the
boundary of the other the value of the road and the
purposes for which it is designed, namely: to
-- ,
Honorable Olin Culberson, Page 6 WW-328
facilitate vehicular traffic, to effect traffic
safety, to construct modern expressways, to pro-
vide better connections between highways of this
and adjoining cities, would be largely lost and
rendered ineffectual. If traffic is to be faclll-
tated the congestion and hazards within the city
must be to some extent eliminated."
The streets of incorporated cities or towns are
also public highways. State v. City of El Paso, 135 Tex.
359, 143 S.W.2d 366; Lamkin v. State, 123 S.W.2d 662.
Considering the Motor Carrier Act as a whole, the
objectives sought to be accomplished and the obvious legis-
lative intent, as well as the previous opinions of this
department, we conclude that the Railroad Commission has
jurisdiction over all motor carrier operations over the
public highways of this State except local operations within
the limits of an incorporated city or town and operations
from an incorporated city or town where such service does
not pass into or through another incorporated city or town.
The definition of a motor bus company, Art.
glib, Sec. l(c), differs from that of a motor carrier. The
only motor bus operations excluded from the Commission's
jurisdiction are those "wholly within the limits of any
incorporated town or city, and the sslburbsthereof, whether
separately incorporated or otherwise." (Emphasis sum)
What constitutes a suburb of a city and whether
a city, town or village adjoining or adjacent to another
city Is a suburb thereof within the meaning of the Motor Bus
Act, Is necessaril a fact question. In Villalobos vs.
Holguin, 146 Tex. 174, 208 S.W.2d 871, the Supreme Court
held that the Railroad Commission of Texas did not have
authority to regulate transportation of passengers within
the limits of an incorporated city or town and the suburbs
thereof. The question had arisen whether Ysleta, Socorro,
San Eliziarlo and Clint and the territory between these
villages were suburbs of El Paso. The Supreme Court held
that because there were farm lands between Ysleta, Socorro,
San Eliziario, Clint and El Paso, the smaller towns named
were not suburbs of El Paso. We do not believe that the
existence of farm lands between towns is the sole criterion
for determining whether or not a town or village or an
Incorporated city adjacent to or adjoining a larger town is
a suburb thereof. It may be that under the Motor Bus Act
the Railroad Commission of Texas would be authorized to
consider whether the smaller adjacent or adjoining town had
such industry and transportation problems as to be con-
sidered separate and independent from the larger town
adjoining it. The existence of terminals and depots In the
Honorable Olin Culberson, Page 7 WW-328
smaller town, the existence of separate industries, stores
and businesses therein, which allow It to draw from the
trade territory adjoining it, may-be factors to be con-
sidered in determining whether it exists independently or
as a suburb of an adjacent town.
It is our opinion that the courts would take
judicial notice that Fort Worth is not a suburb of Dallas
or vice versa. As to whether Grand Prairie and Arlington,
or other communities in this general area, are suburbs of
each other or of either Dallas or Fort Worth, if any doubt
exists and if the occas,ionarises, the Commission can hear
testimony on the question, in accordance with our opinion
No. O-2737. With reference to the jurisdiction of the
Commission over a motor bus application proposing service
from Fruitdale acres to Preston Hollow via Dallas, Highland
Park and University Park, it was there stated as follows:
"The Commission can hear testimony on the
question. If the evidence shows conclusively
that all points involved in the operation are
either within the city limits of Dallas or its
suburbs, or If the Commission so finds upon dis-
puted evidence, then the application should be
dismissed, since the Railroad Commission would be
without jurisdiction. On the other hand If the
evidence shows beyond any dispute that some parts
ofthe operation would be conducted outside the
limits of Dallas and its suburbs, or if the
Commission so finds upon contradictory testimony,
the Commission would have jurlsdlction to enter-
tain the application upon its merits."
SUMMARY
1. The Dallas-Fort Worth Turnpike and ~the
use of it for hauling for hire is under the jur-
isdiction of the Railroad Commission of Texas.
2. It is necessary for any person operating
a truck and hauling for hire to have a certificate
of authority from the Railroad Commission of Texas
to engage in such activity, and
3. It is necessary for the operator of a
bus Inthe Dallas-Fort,Worth area to have a permit
from the Railroad Commission, authorizing him
to operate over the Dallas-Fort Worth Turnpike
Honorable Olin Culberaon, Page 8 WW-328
under Texas Civil Statutee, Article 911a.
Very truly yours,
nt Attorney General,
APPROVED:
OPINION COMMITTEE:
Geo. P. ,Blackburn,Chairfnan
W.V. Gemert
John Webster‘
Milton Richardson