Querner v. Railroad Commission of Tex.
| Decision Date | 24 January 1951 |
| Docket Number | No. 9952,9952 |
| Citation | 236 S.W.2d 853 |
| Parties | QUERNER v. RAILROAD COMMISSION OF TEXAS et al. |
| Court | Texas Court of Appeals |
A. M. Felts, Austin, for appellant.
Price Daniel, Atty. Gen., Charles E. Crenshaw and Durwood M. Goolsby, Asst. Attys. Gen., for appellees.
This suit involves a statutory appeal under the provisions of Section 20, Article 911b, V.A.C.S., from an order of the Railroad Commission of Texas, appellee, dated October 18, 1950. The order cancels a certificate theretofore issued to W. A. Querner, doing business as Thru Truck Service, appellant, authorizing him to transport interstate commerce only, over the highways of the State of Texas, between San Antonio and Houston, Texas. The suit was instituted by appellant in the 98th Judicial District Court, Travis County, Texas, on the 17th day of November, 1950. On that date the judge of that court issued and ordered a temporary restraining order, restraining the Railroad Commission of Texas, its members, agents, servants and employees, from interfering with appellant's business, from arresting his drivers, and from prohibiting him from transporting commodities in interstate commerce between Houston and San Antonio, Texas, and setting a hearing on appellant's application for a temporary injunction in like terms as the temporary restraining order for 10:00 a. m., November 27, 1950.
Hearing on appellant's application for a temporary injunction was held on that date and the court denied the same, but continued the restraining order theretofore entered in full force and effect until December 7, 1950. Judgment denying appellant's application for a temporary injunction was duly entered on the 28th day of November, 1950, from which appellant duly perfected his appeal to this court.
This court on the 6th day of December, 1950, entered a judgment extending the trial judge's restraining order until this appeal is finally disposed of.
On June 21, 1944, the Interstate Commerce Commission issued to appellant a certificate of public convenience and necessity, authorizing him to transport general commodities, with certain exceptions, in interstate or foreign commerce between San Antonio, Texas, and Houston, Texas.
On the 9th day of March, 1944, the Railroad Commission of Texas issued its certificate No. 3059 to appellant, authorizing him to operate a common carrier service in interstate transportation only within the State of Texas over the following highways of this State: State Highway No. 3, between San Antonio and Seguin; State Highway No. 3A, between Seguin and Waelder; State Highway No. 3, between Waelder and junction with Highway 73, near Columbus; State Highway No. 73, between junction with No. 3 near Columbus and Houston; U. S. Highway No. 90, between San Antonio and Seguin; U. S. Highway No. 90, between Waelder and junction with State Highway No. 73.
This certificate contained the following restrictions:
'Nothing herein shall be construed to authorize the transportation for compensation of commodities in intrastate commerce from any Texas point to another Texas point, and the applicant is hereby prohibited from engaging in any such operation.
'This certificate or permit to remain in effect from and after the date hereof, subject to the provisions, limitations and restrictions of Chapter 314, Acts Regular Session of the Forty-first Legislature, 1929, and all amendments thereto, as well as the rules, regulations and decisions of the courts, and the rules and regulations of the Railroad Commission of Texas, heretofore prescribed, or which may be hereafter prescribed under and pursuant to the authority conferred upon it by law.'
On May 15, 1950, George E. Hughes, Chief Law Enforcement Officer for the Motor Transportation Division of the Railroad Commission of Texas, filed a complaint with the Railroad Commission, in which he alleged that on some twentythree different occasions appellant transported goods in intrastate commerce between Houston and San Antonio, Texas, for compensation, in violation of his certificate of authority from the Railroad Commission, the laws of this State and the rules and regulations of the Railroad Commission, and prayed that appellant be cited to appear and show cause why his certificate No. 3059 should not be cancelled.
After due notice, hearings on the above complaint were held by the Railroad Commission on June 8, 1950; August 8, 1950; and October 6, 1950, and on October 18, 1950, the Commission issued its order cancelling appellant's certificate No. 3059, which is here attacked by appellant.
Appellees contend that the Railroad Commission had the power and authority to make the order cancelling the certificate issued by it to appellant, and that the same is reasonably supported by substantial evidence and thus legal and valid.
The order of March 9, 1944, authorizing the use of the highways, is in part as follows:
'This certifies that the Railroad Commission of Texas is of the opinion that the use of the highways designated in said application by such motor vehicles as are described therein will not interfere with the reasonable use made of said highways by the public for highway purposes, and that the operation of such motor vehicles will not impose an undue burden on the said highways. Accordingly Permission Is Hereby Granted To:
'W. A. Querner, DBA Thru-Truck Service * * * To Operate a Common Carrier motor carrier service in Interstate transportation service within the State of Texas * * * over the highways of Texas as follows: (Designating them).
'Interstate
or
'Nothing herein shall be construed to authorize the transportation for compensation of commodities in Intrastate commerce from any Texas point to another Texas point, and the applicant is hereby Prohibited from engaging in any such operation.
'In the Event the Interstate Commerce Commission shall hereafter revoke or restrict the authority heretofore granted by it to applicant, then the authority herein granted to use a portion of the highways in the State of Texas shall become Null and Void, or Restricted, in accordance with any such order of the Interstate Commerce Commission.
'This Certificate Or Permit to remain in effect from and after the date hereof, subject to the provisions, limitation, and restrictions of Chapter 314, Acts Regular Session of the Forty-first Legislature, 1929, and all amendments thereto, as well as the rules, regulations, and decisions of the courts, and the rules and regulations of the Railroad Commission of Texas, heretofore prescribed, or which may be hereafter prescribed under and pursuant to the authority conferred upon it by law.'
On May 15, 1950, a complaint was filed charging that the appellee, in twenty-three counts, transported in intrastate commerce from Houston, Texas, to San Antonio, Texas, for compensation certain shipments received from Kelley Manufacturing Company, and there delivered said shipments to an unknown consignee. The complaint stated:
'That each and all of the shipments enumerated in this complaint were each and all known to W. A. Querner, DBA Thru-Truck Service, to be intrastate shipments moving in intrastate commerce, and that each and all of said shipments were transported by W. A. Querner, DBA Thru-Truck Service, with intent to violate the terms, provisions, and restrictions of Common Carrier Certificate No. 3059, and that said defendant continues and intends to continue to transport shipments moving in Intrastate commerce in violation of the terms, provisions, and restrictions of said Certificate No. 3059.
'Wherefore the said Geo E. Hughes, Chief Law Enforcement Officer of the Motor Transportation Division of the Railroad Commission of Texas prays that W. A. Querner, DBA Thru-Truck Service, be cited to appear before the Railroad Commission of Texas at such time and place as may be designated, to show cause why Interstate Common Carrier Certificate No. 3059 should not be cancelled for acts and violations alleged in this complaint, and for failure to comply with legal orders and rules and regulations of the Railroad Commission of Texas, and that after such hearing and failure to show cause, said Interstate Certificate No. 3059 be cancelled.'
On October 18, 1950, the Commission entered its order cancelling its order No. 3059, and reciting its findings that W. A. Querner, DBA Thru-Truck Service, had on the occasions charged in the complaint transported under shipper's orders intrastate shipments; that the shipments moved in truck load lots; the Commission further finding:
'This certificate No. 3059 authorizes the carrier to operate a motor carrier service in interstate commerce over the highways as described in the certificate. The carrier has no authority under this certificate to use the highways of Texas for any purpose other than the movement of interstate freight. Further, W. A. Querner, dba Thru Truck, Service, has no authority whatever from the Railroad Commission of Texas to use the highways of Texas in the transportation of intrastate freight, and his operations in that respect are wholly unauthorized and unlawful and in violation of his certificate issued by the Railroad Commission of Texas.
'The Commission is, therefore, of the opinion that the authority contained in Interstate Certificate No. 3059 to use the highways of Texas as an interstate carrier should be cancelled,-Accordingly, it is
'Ordered * * * that * * * Certificate No. 3059, * * * be, and the same is hereby in all things Cancelled, and the carrier is prohibited from using the highways described in that certificate.'
This appeal is founded on three points assigned as error by the appellant, and are as follows:
'Point One: The only authority the Railroad Commission of Texas has with respect to interstate commerce is to make a finding as to whether or not the...
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...commodity is within the terms of the Act and correspondingly of the order is a fact issue in each case. Querner v. Railroad Commission of Texas, Tex.Civ.App., 236 S.W.2d 853, affirmed 150 Tex. 490, 242 S.W.2d 166. In our case the Commission has specifically set out by name the commodities w......
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Railroad Commission of Tex. v. Querner
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