International-Great Northern R. Co. v. Railroad Com'n

• Decision Date: 24 February 1926
• Docket Number: (No. 6930.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 281 S.W. 1084
• Parties: INTERNATIONAL-GREAT NORTHERN R. CO. v. RAILROAD COMMISSION OF TEXAS et al.
• Court: Texas Court of Appeals

281 S.W. 1084

INTERNATIONAL-GREAT NORTHERN R. CO. v. RAILROAD COMMISSION OF TEXAS et al.

(No. 6930.)^*

Court of Civil Appeals of Texas. Austin.

February 24, 1926.

Rehearing Denied March 10, 1926.

Appeal from District Court, Travis County: Geo. Calhoun, Judge.

Suit by the International-Great Northern Railroad Company against the Railroad Commission of Texas and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Samuel B. Dabney, Walter F. Woodul, and James E. Kilday, all of Houston, for appellant.

J. H. Tallichet, of Houston, Dan Moody, Atty. Gen., and Ernest May, of Austin, for appellees.

BLAIR, J.

Appellant sued the Railroad Commission of Texas, the individual members composing it, and the Attorney General of Texas, to have declared void the orders of the commission which required appellant, railroad company, Houston Belt & Terminal Company, and Texas, New Orleans Railroad Company, to install "interlocking devices" at three points where their lines of railway crossed in the city of Houston, Tex.; also to enjoin and restrain the enforcement of the orders, as well as any suit for statutory penalty for failure to obey them.

Appellees answered formally, and upon a hearing of the case, the trial court denied all relief sought by appellant; hence this appeal.

The three companies affected by the orders are Texas corporations operating lines of railway wholly within this state, and are engaged in interstate commerce. If authorized, the orders admittedly come within a reasonable exercise of the state's police power to regulate railroad grade crossings as affecting the public safety. The interlocking devices required to be installed, though not perfect in every respect, admittedly serve well the purposes for which they are intended. Under the facts no serious complaint can be made as to the expenses of installation and operation of the devices, either as to the amount or apportionment thereof. Appellant alone complains of the orders.

The appeal presents no intricate questions of law or fact, but simply attacks the power and right of the state commission to enforce an ordinary police regulation, having for its purpose the protection of life, limb, and property. For specific authority it claims to act by virtue of articles 6701 to 6705, R. S. 1911, relating to the regulation of railroad grade crossings.

Appellant contends: First. That the statutes authorize no action on the part of the state commission with respect to railroad grade crossings, and in no event the particular orders. Second. That, if the state commission had the power to make the orders (which is denied), section 26 of the Interstate Commerce Act as added by the Transportation Act of 1920, section 441 thereof (Comp. St. Ann. Supp. 1923, § 8596b) has ousted it of such power; and, further, that the car service provision, the provision relating to connections between railroads and tracks on docks, the rate-making provision, the borrowing provision of the recapture clause, the valuation provision, the use of terminals provision, and the provision relating to interchange of traffic between carriers of the Interstate Commerce Act as amended by the Transportation Act of 1920, and enacted pursuant to the commerce clause of the United States Constitution (art. 1, § 8, cl. 3) have also ousted the state commission's power and jurisdiction. Neither proposition is sustained.

We think the constitutional provision with reference to the general power of the federal government to regulate commerce is neither questioned nor involved in this proceeding. Nor does the Interstate Commerce Act, as amended by the Transportation Act of 1920, in any of the particulars pleaded by appellant, or any order of the Interstate Commerce Commission pursuant to its enforcement, oust the state of Texas of its power or right to require the installation and operation of interlocking devices at railroad grade crossings as a reasonable exercise of its police power for the protection of the traveling public and railroad employees in life and limb, and of property. While a state may not undertake to regulate interstate commerce or to unduly burden it, still state legislation having for its purpose the protection and welfare of its citizens is authorized, although it incidentally affects interstate commerce; provided such legislation be not in conflict with any act of Congress or lawful order of the Interstate Commerce Commission on the same subject. Western Union Tel. Co. v. Milling Co., 31 S. Ct. 59, 218 U. S. 406, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815; Atlantic Coast Lines R. Co. v. Maszursky, 30 S. Ct. 378, 216 U. S. 122, 54 L. Ed. 411; Western Union Tel. Co. v. James, 16 S. Ct. 934, 162 U. S. 650, 40 L. Ed. 1105; Chicago Rock Island & Pac. Ry. Co. v. Arkansas, 31 S. Ct. 275, 219 U. S. 453, 55 L. Ed. 290; Smith v. Alabama, 8 S. Ct. 564, 124 U. S. 465, 31 L. Ed. 508; Railway v. Alabama, 9 S. Ct. 28, 128 U. S. 96, 32 L. Ed. 352; N. Y., N. H. & H. R. Co. v. New York, 17 S. Ct. 418, 165 U. S. 628, 41 L. Ed. 853; Mobile Co. v. Kimball, 102 U. S. 691, 26 L. Ed. 238; G. C. & S. F. v. Hefley, 15 S. Ct. 802, 158 U. S. 98, 39 L. Ed. 910; Railroad Co. v. Solan, 18 S. Ct. 289, 169 U. S. 133, 42 L. Ed. 688; Telegraph Co. v. Kansas, 30 S. Ct. 190, 216 U. S. 27, 54 L. Ed. 355; Reid v. Colorado, 23 S. Ct. 92, 187 U. S. 137, 47 L. Ed. 108; Railroad Co. v. Haber, 18 S. Ct. 488, 169 U. S. 613, 42 L. Ed. 878; Atlantic Coast Line R. Co. v. Georgia, 34 S. Ct. 829, 234 U. S. 280, 58 L. Ed. 1312; Erie R. R. v. Public Utilities Com., 41 S. Ct. 169, 254 U. S. 394, 65 L. Ed. 322.

It may be conceded that some of these cases were decided prior to the Transportation Act of 1920; still we find no case or order of the Interstate Commerce Commission construing the act that undertakes to change or disturb the general principle of law announced by them. The act itself does not undertake to do so, except in certain particulars not involved here. The Interstate Commerce Commission Act restricts and confines the activities of that body to the regulation of commerce, rather than to the regulation of railroads, except in so far as they are instruments of commerce. 12 C. J. 121, cases cited note 99. If the congressional records may be relied upon, Congress had no intention, by the passages of the various acts or provisions pleaded by appellant, to change or disturb the general principle of law announced in these cases, except as to the specific matters contained in the act. This was the view of the Supreme Court of the United States in the case of Railroad Commission of California v. Southern Pacific Railway Company, 44 S. Ct. 376, 264 U. S. 331, 68 L. Ed. 713, as...