Railroad Commission v. Fort Worth & D. C. Ry. Co.

• Decision Date: 15 April 1942
• Docket Number: No. 9131.,9131.
• Citation: 161 S.W.2d 560
• Parties: RAILROAD COMMISSION et al. v. FORT WORTH & D. C. RY. CO. et al.
• Court: Texas Court of Appeals

161 S.W.2d 560

RAILROAD COMMISSION et al. v. FORT WORTH & D. C. RY. CO. et al.

No. 9131.

Court of Civil Appeals of Texas. Austin.

April 15, 1942.

Rehearing Denied April 29, 1942.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Suit by the Fort Worth & Denver City Railway Company and others against the Railroad Commission of Texas and others to enjoin enforcement of an order of the commission. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Cecil C. Cammack, Geo. W. Barcus, and Ocie Speer, Asst. Attys. Gen., for appellants.

Allen & Gambill, of Fort Worth, Adiar Dyer, of Dallas, G. E. Hamilton, of Matador, J. D. Dodson, of San Antonio, Walker, Smith & Shannon of Fort Worth, Thompson & Barwise and R. S. Shapard, all of Dallas, Baker, Botts, Andrews & Wharton and Andrews, Kelley, Kurth & Campbell, all of Houston, Terry, Cavin & Mills, of Galveston, A. L. Burford, of Texarkana, C. C. Huff, of Dallas, Fred L. Wallace, of Fort Worth, John T. Maginnis, of Houston, L. L. Bowman, of Greenville, V. W. McLeod, of Galveston, and Claude Pollard, of Austin, for appellees.

BAUGH, Justice.

Appeal is from an order of the District Court setting aside, and enjoining the enforcement of, an order of the Railroad Commission dated April 19, 1940, forbidding the operation, with stated exceptions, of doubleheader trains on any railway in Texas. After extensive hearings, the Commission found that such operations "should be prohibited in the interest of safety to the operatives on said trains and in the interest of safety for the public in general" and entered the following order:

"Therefore, it is the order of the Railroad Commission of Texas that doubleheader trains shall not be operated within the State of Texas, where there is more than one working locomotive or engine at the same time propelling or moving any one train of cars, except in moving trains up steep grades or where a locomotive propelling a train becomes temporarily disabled after leaving the terminal.

"This same ruling and order applies to Diesel powered engines as well as to other locomotives."

The order was predicated upon the provisions of Arts. 6503, 6504 and 6505, R.C.S. It was attacked by numerous railroads and receivers of railroads in Texas on various grounds directed both against the statutes cited and the order itself. Among others, that both the statutes and the order, penal in character, are void because so indefinite and uncertain that they are unenforceable; that the order was without factual support in the evidence; that the order exceeded the authority granted to the Commission by the statutes; that the order, if enforced, would amount to a taking of appellees' property without due process of law; that Art. 6505 is unconstitutional as discriminatory, in that it imposes penalties on railroad corporations but not on receivers of railroads; that the order, as entered, constitutes an unauthorized interference with, and imposes an unreasonable burden upon, interstate commerce; and that same is void as to Diesel engines because same were unknown to the Legislature in 1900, when the law was enacted, and could not, therefore, have been comprehended within its provisions.

The trial court filed findings of fact and conclusions of law in which all these grounds were sustained. Most of the 43 points urged by appellant complain specifically of these several findings and conclusions, and of the action of the trial court in overruling the various special exceptions to appellees' pleadings. Under the conclusions we have reached, however, we deem it unnecessary to discuss in detail the many contentions so made.

The original Act, now embodied in Arts. 6503-6505, was enacted in 1900. Not until the order here attacked was promulgated had the Commission ever attempted to regulate the operation of doubleheader trains under these statutes. Art. 6505 makes the law penal in nature, and as such subject to the rule of strict construction. Schloss v. A., T. & S. F. Ry. Co., 85 Tex. 601, 22 S.W. 1014; Houston, E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551, 557, 45 S.W. 2, 40 L.R.A. 225; Missouri, K. & T. Ry. Co. v. State, 100 Tex. 420, 100 S.W. 766; Railroad Commission v. T. & N. O. Ry. Co., Tex.Civ.App., 42 S.W.2d 1091, writ refused; 32 Tex.Jur. § 4, p. 754; 39 Tex.Jur. § 146, p. 276. It is also true that though such statutes and orders will be liberally construed to carry out the intent of the legislature, the Commission can exercise only the powers expressly delegated to it by law, or necessarily implied from those so delegated; and cannot enlarge such delegated powers by its own orders. State v. Robison, 119 Tex. 302, 30 S.W.2d 292, 297; Com. Standard Ins. Co. v. Board of Ins. Com'rs, Tex.Civ.App., 34 S.W.2d 343, writ refused; Danciger Oil & Ref. Co. v. Railroad Commission, Tex.Civ. App., 49 S.W.2d 837, 841; 34 Tex.Jur. § 6, p. 706.

With these rules applicable we turn to an examination of the statutes. The statutes involved provide:

"Art. 6503. (6706) Double-header trains. — Where an unreasonable degree of hazards results to its employes, it is hereby declared to be an abuse of its franchise and privileges for any railroad company, or receiver, operating a line of railroad in this State to run or operate more than one working locomotive at the same time in propelling or moving any one train of cars, except in moving trains up steep grades, or where a locomotive propelling the train becomes temporarily disabled after leaving the terminal; the Railroad Commission shall investigate such abuses and see that the same are corrected, regulated or prohibited as hereinafter provided."

"Art. 6504. (6707) Use regulated by commission. — Should the Commission decide to regulate or forbid the practice of using more than one working locomotive at the same time in the operation of any train on any railroad, or part of railroad, within this State, then it shall make and record an order fully setting forth its decision and clearly designating the railroad, or part of railroad, on which such practice is forbidden or regulated and how regulated. * * *"

"Art. 6505. (6708) Penalty. — Any railroad corporation which shall at any time after ten days after service of such notice violate the order of the Commission, shall be liable to the State for a penalty...