Railroad Commission v. Southwestern Greyhound Lines

• Decision Date: 26 February 1936
• Docket Number: No. 8445.,8445.
• Citation: 92 S.W.2d 296
• Parties: RAILROAD COMMISSION OF TEXAS et al. v. SOUTHWESTERN GREYHOUND LINES, Inc.
• Court: Texas Court of Appeals

92 S.W.2d 296

RAILROAD COMMISSION OF TEXAS et al. v. SOUTHWESTERN GREYHOUND LINES, Inc.

No. 8445.

Court of Civil Appeals of Texas. Austin.

February 26, 1936.

Rehearing Denied March 18, 1936.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Travis County; W. F. Robertson, Judge.

Suit by the Southwestern Greyhound Lines, Incorporated, to set aside an order of the Railroad Commission of Texas, granting Edward A. Jackson a certificate of convenience and necessity to operate a motorbus service over certain highways and enjoin him from operating and the commission from permitting him to operate under such certificate. From an order granting plaintiff a temporary injunction, the commission and defendant Jackson appeal.

Injunction dissolved, and cause remanded.

J. E. Quaid and R. B. Rawlins, both of El Paso, for appellant Jackson.

Price & Christopher and Wm. E. Dahl, all of Fort Worth, for appellee.

BAUGH, Justice.

On February 19, 1935, Edward A. Jackson filed with the Railroad Commission his application, under the Texas Motor Carrier Act (Acts 1927, c. 270, p. 399, as amended, Vernon's Ann.Civ.St. art. 911a), for a certificate of convenience and necessity to operate a motorbus service wholly interstate, from the New Mexico line over Texas highways, via El Paso, Abilene, and Fort Worth to Dallas, Tex. After two hearings thereon, such certificate was granted by the commission on September 27, 1935. Thereupon, the appellee, an interested party and competitor, appealed from such order by filing suit in the district court of Travis county, to set it aside and for injunction to restrain Jackson from operating under such certificate, and to restrain the commission from permitting him to do so. This temporary injunction was by the trial court granted as prayed for on October 5, 1935, from which order this appeal is prosecuted. The Railroad Commission has not filed any brief. Jackson and the Greyhound Lines have.

A rather anomalous situation is presented by contentions here made by appellant Jackson and appellee. Both contend that the Federal Motor Carrier Act, 1935 (49 U.S.C.A. § 301 et seq.), signed by the President on August 9, 1935, which did not become operative under its terms until October 1, 1935, wherein the regulation of interstate motor transportation for hire was vested in the Interstate Commerce Commission, completely superseded and nullified all authority of the states over such transportation, and deprived the Railroad Commission of Texas of any jurisdiction over Jackson's application; and that therefore the order of the commission was void for want of jurisdiction. At this point, however, the views of appellant and appellee diverge. Jackson contends that because the federal government had assumed control of such interstate commerce, state authority over it was entirely excluded; that as a result the order of the Railroad Commission was void for want of jurisdiction; that for the same reason the state court was without jurisdiction in this suit; and that only the federal courts had jurisdiction over such subject-matter. The Greyhound Lines, on the other hand, contend that the order being void for want of jurisdiction of the Railroad Commission to make it, the state court had concurrent jurisdiction with the federal courts to enjoin its enforcement.

While the grounds upon which the injunction was granted are not stated in the injunction, it is to be noted that the trial court enjoined the interstate operations of Jackson, and enjoined the commission from permitting him to operate at all, not from regulating his operation otherwise. If, as contended by both parties, the Federal Motor Carrier Act completely occupied the field of regulation of such interstate commerce, to the entire exclusion of the state, in view of the fact that said act provides for its enforcement through the federal District Courts (section 222(b), 49 U.S.C.A. § 322(b), and that such act relates only to interstate commerce, we think that the federal courts would have exclusive jurisdiction over any suit to enforce the act. Gulf, C. & S. F. R. Co. v. Moore, 98 Tex. 302, 83 S.W. 362, 4 Ann. Cas. 770; Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U.S. 121, 35 S. Ct. 484, 59 L.Ed. 867; 15 C.J. 1153, § 633. And if the Railroad Commission had no jurisdiction to enter its order at the time it did, the only jurisdiction the state court could exercise would be to adjudge the order of the commission void for that reason. It could not, as it undertook to do, enjoin the interstate operation of Jackson, if, as contended, the control over that operation had been transferred by the federal act exclusively to the Interstate Commerce Commission. The federal District Court would be the proper forum for that purpose.

We are, however, confronted at the outset with the question, first, whether the Railroad Commission had any jurisdiction over Jackson's application for a certificate of convenience and necessity to operate interstate at the time he sought such certificate; and, second, if so, whether the Federal Motor Carrier Act, 1935, completely deprived the Railroad Commission of such jurisdiction as it theretofore had.

Because of the inconsistent and sometimes conflicting holdings of state courts and of federal courts, both trial and appellate, on this subject, considerable confusion has arisen. At the outset, and before the expansion of interstate commerce by motor transportation over the public highways to its present proportions, the courts manifested a disposition to follow the rules applied to the regulation of interstate commerce over the railroads. It is not amiss to here observe, however, that there are fundamental underlying differences, inherent in nature, which have come to be recognized by the courts, both in character and the rights of the carrier, between interstate transportation by rail, and such transportation over the public highways. In the one instance the carrier builds, owns, equips, maintains, and operates its own right of way at its own expense. Such right of way is private and not public property, subject to taxation, and taxed as such. The carrier's right to transport property over and upon such roadbed cannot be denied. It can, subject to proper limitations prescribed by law, and not necessary to consider here, deny to others and to the public the right to the use of such property and to protect it against trespassers. While the business conducted thereon is affected with a public interest, subject to the police power of the state and of the federal government, and to reasonable regulation as such, it still retains its character as a private undertaking, subject to regulation by law in the public interest.

On the other hand, in the field of motor carrier operation over the highways, the roadbed used is one owned, built, and maintained by the state from taxes exacted from its citizens. It was not constructed for the purpose of enabling individuals or corporations to conduct a business thereon for hire, either interstate or intrastate, for their own profit, but for the use and benefit of the public. No individual or corporation has any such interest in, or rights thereon, as entitle him to conduct a business for hire over such roads. Such use of the highways for such purpose is therefore only permissive, subject to regulation when granted, and may be denied or withdrawn, whenever it becomes destructive of the state's property, or dangerous to the safety of the public in its use of the highways in the manner and for the purposes for which such highways were constructed and are maintained by the state.

Under these facts and circumstances, and the inherent differences of the subject-matter of regulation, there should be, and as we interpret the recent decisions of the Supreme Court of the United States, there has been, a clear differentiation between the authority of the state to regulate the use of its highways, even though such regulation interferes with interstate commerce carried over same, and the right of the state to interfere with such commerce carried over the railroads. The old rate cases, and other decisions of the United States Supreme Court bearing upon state legislation and regulations affecting interstate commerce over the railroads are not, therefore, applicable to all phases of such commerce carried, by permission only, and not as a matter of right, over the state highways, which are the property of the state and not the property of the carriers. The necessity for such differentiation is, we think, manifest.

Appellant Jackson cites, as conclusive of his contention that the Railroad Commission was wholly without jurisdiction over his application for a certificate, the case of Anderson, Clayton & Co. v. State, 122 Tex. 530, 62 S.W.(2d) 107, 111, and the cases therein cited in support of the pronouncement there made on this question. We pass without consideration here, as we do not deem it necessary, the question of whether Jackson is entitled to attack the jurisdiction of the state agency to pass upon his application whose jurisdiction he had himself voluntarily invoked for that purpose. The legislative act considered in the Anderson, Clayton & Company Case was that dealing with carriers of property over the highways, whether as common carriers or contract carriers, in brief, motortruck regulation. Vernon's Ann.Civ.St. art. 911b. Here there is involved the regulation of carriers of passengers, or motorbus regulation. Article 911a, Vernon's Ann.Civ.St. But so far as the power of the state and of the federal government to regulate the operations over such highways with reference to interstate commerce is concerned, the same principles would manifestly apply to the regulation of both motorbus and motortruck operations thereon.

In the Anderson, Clayton & Company Case, supra, with reference to the Texas law, the court says: "That part of the act which requires vehicles engaged wholly in...