Pullman Co. v. Railroad Commission of Texas, 38 Civ. A.

Decision Date03 April 1940
Docket NumberNo. 38 Civ. A.,38 Civ. A.
Citation33 F. Supp. 675
PartiesPULLMAN CO. et al. (WEST et al., Intervenors) v. RAILROAD COMMISSION OF TEXAS et al. (CUNNINGHAM et al., Intervenors).
CourtU.S. District Court — Western District of Texas

Black, Graves & Stayton, and Claude Pollard, all of Austin, Tex., for plaintiffs.

Ireland Graves, of Austin, Tex., for intervenor-plaintiffs.

Gerald C. Mann, Atty. Gen., of Texas, Cecil C. Rotsch, Glenn R. Lewis, and Lee Shoptaw, Asst. Attys. Gen., of Texas, for defendants.

Cecil A. Morgan, of Fort Worth, Tex., for intervenor-defendants.

Before SIBLEY, Circuit Judge, and McMILLAN and ALLRED, District Judges.

PER CURIAM.

The Pullman Company and a large number of Railway Companies operating in Texas and Trustees in charge of Railways operating in Texas bring this suit against the Railroad Commission of Texas, the various members thereof and the Attorney General, to restrain the enforcement of a certain order made by the Commission on the 4th day of November, 1939.

The order purports to be made pursuant to the statutes of the State of Texas and a sum in excess of the jurisdictional amount is shown to be involved. The ground of attack is the unconstitutionality of the order. A temporary restraining order was applied for and granted. Accordingly, a case for three judges, under Section 266 of the Judicial Code, 28 U.S.C.A. § 380, is presented. The case has been tried on its merits by a court so organized.

Upon the trial, without objection on the part of anyone, leave was granted to three Pullman porters and to three Pullman conductors to intervene. The Pullman porters made common cause with the plaintiffs and the Pullman conductors aligned themselves with the defendants.

The order complained of is long and contains some twenty-nine very extensive findings of fact. These are followed by certain recitals labeled as orders and certain decrees with regard to rates which may be charged under certain circumstances by the Railroads and the Pullman Company. However, the gist of the order and the provision which is particularly assailed and which it is manifest it was the prime purpose of the order to put into effect, is as follows: "It is further ordered, adjudged and decreed that no sleeping car shall be operated on any line of railroad in the State of Texas when occupied by passengers holding the proper transportation for the accommodation of such cars, unless such cars are continuously in the charge of an employee or an authorized agent of the firm or corporation owning or operating the same having the rank and position of Pullman conductor."

Plaintiffs make their attack upon a great many grounds. It is unnecessary to mention more than two or three of them. It is first asserted that the order is not within the authority delegated to the Railroad Commission by any statute or law of the State of Texas. It is said, second, that in so far as it purports to relate to transportation rates, it is void for the reason that it was issued without notice of a hearing for such purpose. It is further contended that the order is unjust, arbitrary, unsupported by any basis in fact and, accordingly, confiscatory. Defendants joined issue with plaintiffs upon these matters and evidence was introduced at great length by both sides.

It appears without contradiction that there are some sixteen or seventeen routes in Texas where the Pullman cars, so far as the Pullman Company is concerned, are in charge of a porter. In most cases, this occurs only where the distance traversed is short, and it is invariably true that it occurs only in instances where there is only one Pullman car on the train. The general control of the Pullman car and the passengers therein is lodged in the Railroad conductor. On trains where two or more Pullman cars are being carried contemporaneously, a Pullman conductor is in charge, subject, however, to the train conductor.

We are confronted at the outset by the question as to what authority the Railroad Commission has to make the challenged order. The Railroad Commission is a creature of statute. Vernon's Ann. Civ.St.Tex. art. 6444 et seq. It gets no authority by implication or from the common law. It is given the authority by statute to correct abuses, but the Texas courts have been uniform in holding that the abuse must be one defined by law. In Railroad Commission v. H. & T. C. Ry. Co., 90 Tex. 340, at page 352, 38 S.W. 750, 754, the Supreme Court says: "The question, then, arises, What abuses can the railroad commission correct? We think that it must be some abuse which has been defined by the law, and that the commission would not, by this power, be authorized to enact a law defining what is an abuse or a disregard of duty on the part of a railroad corporation."

In State v. Sugarland Ry. Co., Tex.Civ. App., 163 S.W. 1047, 1049, writ refused, the Court said: "The Commission is a creature of the statute, based upon constitutional provision for the establishment of an agency in this state, with such powers as may be...

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  • NATIONAL ASS'N FOR ADVANCE. OF COLORED PEOPLE v. Patty
    • United States
    • U.S. District Court — Eastern District of Virginia
    • January 21, 1958
    ...Railroad Commission of Texas v. Pullman Company, supra, appears a good starting point. In that case a three-judge District Court, 33 F.Supp. 675, enjoined an order of the Texas Railroad Commission. On appeal the Court referred to the fact that the Court consisted of an able and experienced ......
  • Dyer v. Kazuhisa Abe
    • United States
    • U.S. District Court — District of Hawaii
    • February 10, 1956
    ...F.2d 399; Gregg v. Winchester, 9 Cir., 1949, 173 F.2d 512, certiorari denied, 1949, 338 U.S. 847, 70 S.Ct. 87, 94 L.Ed. 518. 76 D.C.W.D.Tex.1940, 33 F.Supp. 675, reversed, 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 77 People of Puerto Rico v. Shell Co., 1937, 302 U.S. 253, 261-263, 58 S.Ct.......
  • American Booksellers Ass'n, Inc. v. Schiff
    • United States
    • U.S. District Court — District of New Mexico
    • November 3, 1986
    ...courts, implicitly relying on Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), rev'g, 33 F.Supp. 675 (W.D.Tex. 1940).5 II. The Before considering the issues, it is essential to review the New Mexico statutory design for the regulation of sexually ori......
  • Landry v. Daley
    • United States
    • U.S. District Court — Northern District of Illinois
    • July 3, 1968
    ...factual situations, different procedural consequences, and different underlying rationale. Wright, Federal Courts 169 (1963). 33 33 F.Supp. 675 (W.D.Tex.1940). 34 312 U.S. at 501-502, 61 S.Ct. 643. 35 Indeed, it is well settled that a federal court has jurisdiction to decide ancillary state......
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