Railroad Commission v. Texas & N. O. R. Co.

• Decision Date: 23 October 1946
• Docket Number: No. 9603.,9603.
• Citation: 197 S.W.2d 176
• Parties: RAILROAD COMMISSION OF TEXAS et al. v. TEXAS & N. O. R. CO.
• Court: Texas Court of Appeals

197 S.W.2d 176

RAILROAD COMMISSION OF TEXAS et al. v.TEXAS & N. O. R. CO.

No. 9603.

Court of Civil Appeals of Texas. Austin.

October 23, 1946.

Rehearing Denied November 13, 1946.

Appeal from District Court, Travis County; Roy C. Archer, Judge.

Action by Texas and New Orleans Railroad Company against Railroad Commission of Texas and others to set aside an order of the defendants denying plaintiff's application for authority to abandon passenger train service on its branch line between Wharton and Palacios.From a judgment setting aside such order and enjoining the commission from interfering with such abandonment, the Railroad Commission of Texas and others appeal.

Judgment reversed, injunction granted dissolved, and judgment rendered.

Grover Sellers, Atty. Gen., and James D. Smullen, Asst. Atty. Gen., for appellants.

Baker, Botts, Andrews & Walne, and Cyril J. Smith, all of Houston, John J. McKay and Charles N. Avery, Jr., both of Austin, for appellee.

BAUGH, Justice.

This appeal is from a judgment setting aside an order of the Railroad Commission of Texas denying the Railroad Company's application for authority to abandon passenger train service on its branch line between Wharton and Palacios; and enjoining the Commission from interfering with such abandonment.The facts leading up to this controversy were substantially as follows:

The railroad was built about 1904 and both freight and passenger train service between said points then inaugurated.Due to the fact that the passenger train service was operated at a loss, the Commission, under Art. 6479, R.C.S., as amended in 1933, seeVernon'sAnn.Civ.St. Art. 6479, granted said Railroad Company permission in 1936 to abandon passenger train service over said line between Palacios and Bay City; and for the same reason in 1938 granted said Railroad Company permission to abandon such passenger train service between Bay City and Wharton.Between March, 1938, and September, 1940, no passenger train service over said branch line was rendered.In September, 1940, because of the national emergency and the military installation at Palacios, said Railroad Company voluntarily resumed daily passenger train service between Wharton and Palacios, notifying the Commission at the time that same was intended to be temporary to meet military necessity only, and when such necessity should cease to exist, the Railroad Company would apply to the Commission for authority to discontinue such temporary service.

In September, 1942, the Railroad Company applied to the Commission for authority to discontinue such service on the ground that it was no longer needed and was being operated at a loss.Hearing was had thereon and the application denied, because of gas and tire rationing, "without prejudice to further consideration after a test period, ending March 1, 1943."Another application, based upon the same grounds, was made in 1945 and refused on December 21, 1945, on the recited grounds of "public convenience and necessity."A third application, setting up the same grounds, was heard by the examiner for the Commission on May 2, 1946, and denied by order of the Commission dated May 21, 1946, without stating the grounds for denial thereof.This latter order is one herein appealed from.

Extensive original evidence was presented upon the trial hereof, and the records of the three hearings before the examiner for the Commission were also offered.The trial court set aside the order appealed from and authorized the abandonment of such passenger train service upon a finding that such service is not a public necessity; and does not and will not pay its cost, plus a reasonable return on the property employed in rendering it.

The first point presented by the Commission involves a construction of Art. 6479, R.C.S. as amended.The contention being that said statute, in providing that the Commission "shall relax such requirement"(that is, for passenger train service) under the conditions stated in said statute, is neither authorized nor compelled to permit complete "abandonment" of such service.

A review of former statutes and the decisions based thereon is essential to a proper determination of this contention.

Under Arts. 6349, 6357, 6358, and 6479, R.C.S.1925, and the prior decisions relating to abandonment of railroad once in operation, it appears now settled law that a railroad company had no such right of abandonment regardless of loss in operation, without specific legislative authority to do so.Such are the holdings in State v. Sugarland R. Co., Tex.Civ.App., 163 S.W. 1047;Jeff Bland Lumber & Bldg. Co. v Railroad Commission, Tex.Civ.App., 203 S.W. 402, both decided by this court; and State v. Enid, O. & W. Ry. Co., 108 Tex. 239, 191 S.W. 560.In all of these cases complete abandonment of the railroad and removal of the tracks were involved.The decisions in the two cases first above cited were grounded on lack of legislative authority to permit such abandonment; and the decision of the Supreme Court in case last above cited was grounded upon contract to maintain and continue such railroad.In 1927the Legislature amended Art. 6479, R.C.S.1925, which then required daily service, except Sunday, of all railroads and branches thereof carrying passengers, so as to provide that "the Commission may, in its discretion, relax such requirement as to any railroad in this State less than fifty miles in length and the gross annual passenger revenues of which are less than $3,600.00; * * *."Acts40 Leg., 1927, Ch. 198, p. 283.Again in 1933, Acts 1933, 43rd Leg., Ch. 111, p. 281, the Legislature further amended Art. 6479 so as to read in so far as pertinent here, as follows: "It shall be the duty of the Commission to see that upon each railroad in this State carrying passengers for hire there shall be run at least one train each day, Sundays excepted, upon which passengers shall be hauled; provided, however, the Commission may, in its discretion, upon application filed and after notice and hearing, relax such requirement as to any railroad, or part, portion or branch thereof, when, in its opinion, public convenience permits of such relaxation, and shall relax such requirement when it appears upon such hearing that the running of one train each day, Sundays excepted, is not necessary in the rendition of adequate service to the public, or that on any railroad, or part, or portion or branch thereof, passenger service as frequent as one train each day, Sundays excepted, with the passenger traffic offered and reasonably to be expected, does not and will not pay the cost of such service plus a reasonable return upon the property employed in the rendition of such service; * * *."(Emphasis added.)

We think it may be clearly inferred that such amendments were enacted because of the rigid requirements of such statutes as construed in the decisions above cited, and to relieve the onerous burdens imposed by law on short line railroads or branches operating at a loss.But the issue here presented is whether the Legislature intended, in the use of the word "relax" to authorize complete abandonment of such service.There was evidence that the Commission had in past authorizations permitted the abandonment of passenger services where operated at a loss; and had, in 1936 and 1938, authorized appellee to do so over the same route here involved.Such actions by the Commission may be deemed a departmental construction of said Act, which, if the law be ambiguous and the construction reasonable, the courts will ordinarily follow.39 Tex.Jur. § 126, p. 235.But where exceptions or provisos to a general law are involved, they will, as a rule, be strictly construed, and such provisos not extended beyond their plain terms. 39 Tex.Jur., § 148, p. 277.It is also a cardinal rule of statutory construction, that words in common use, when used in a statute, will be given their natural, ordinary, and popular meaning.Art. 10, R.C.S.;39 Tex.Jur., § 105, p. 197.Both "relax" and "...