Southwestern Greyhound Lines v. Railroad Com'n

• Decision Date: 25 November 1936
• Docket Number: No. 7104.,7104.
• Citation: 99 S.W.2d 263
• Parties: SOUTHWESTERN GREYHOUND LINES, Inc., v. RAILROAD COMMISSION OF TEXAS et al.
• Court: Texas Supreme Court

Page 263

99 S.W.2d 263

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

No. 7104.

Supreme Court of Texas.

November 25, 1936.

Error to Court of Civil Appeals of Third Supreme Judicial District.

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. To review a judgment of the Court of Civil Appeals [92 S.W.(2d) 296], dissolving a temporary injunction and remanding the cause, the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed, and judgment of trial court issuing temporary injunction affirmed.

Price & Christopher and William E. Dahl, all of Fort Worth, for plaintiff in error.

Everett L. Looney, of Austin, J. E. Quaid and R. B. Rawlins, both of El Paso, William McCraw, Atty. Gen., and Curtis E. Hill, Asst. Atty. Gen., for defendants in error.

SHARP, Justice.

On February 19, 1935, Edward A. Jackson filed with the Railroad Commission of this state his application under the Texas Motor Carrier Act (Acts 1927, c. 270, p. 399, as amended, now article 911a, Vernon's Ann.Civ.St.), for a certificate of convenience and necessity to operate a motorbus service, exclusively for interstate purposes, from Anthony, N. M., a point just across the New Mexico line, over Texas highways, via El Paso, Abilene, and Fort Worth to Dallas, Tex. The Railroad Commission granted such certificate on September 27, 1935. The Southwestern Greyhound Lines, Inc., an interested party and competitor, appealed from such order by filing suit in the district court of Travis county to set aside the order and for an injunction to restrain Jackson from operating under such certificate, and to restrain the Railroad Commission from permitting him to do so. The temporary injunction was by the trial court granted, as prayed for, on October 5, 1935; from which order Jackson and the Railroad Commission appealed. The Court of Civil Appeals dissolved the injunction as being issued improvidently, and remanded the cause. 92 S.W.(2d) 296. This court granted a writ of error.

This cause brings into review for the first time by this court the Federal Motor Carrier Act 1935, §§ 201-227, Acts 74th Congress, Senate Bill 1629, U.S.C.A., title 49, §§ 301 to 327, inclusive. This law was approved by the President of the United States on August 9, 1935. The act is very comprehensive in its terms, and clearly shows that it was the purpose of Congress to legislate and to declare its policy to regulate transportation by motor carriers engaged in interstate commerce on the highways. We shall mention only those parts pertinent to a decision of the question before us. Section 302 of this act (49 U.S.C.A.) sets forth the declarations of policy and delegation of jurisdiction of the Interstate Commerce Commission, and in order to show the full purpose of the act we copy the whole section:

"(a) It is hereby declared to be the policy of Congress to regulate transportation by motor carriers in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest; promote adequate, economical, and efficient service by motor carriers, and reasonable charges therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; improve the relations between, and coordinate transportation by and regulation of, motor carriers and other carriers; develop and preserve a highway transportation system properly adapted to the needs of the commerce of the United States and of the national defense; and cooperate with the several States and the duly authorized officials thereof and with any organization of motor carriers in the administration and enforcement of this chapter.

"(b) The provisions of this chapter apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission.

"(c) Nothing in this chapter shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof. (Feb. 4, 1887, c. 104, Part II, § 202, as added Aug. 9, 1935, c. 498 [§ 1], 49 Stat. 543.)"

Section 303 contains the definitions and exceptions contained in the act.

Subdivision 10 thereof reads: "The term `interstate commerce' means commerce between any place in a State and any place in another State or between places in the same State through another State, whether such commerce moves wholly by motor vehicle or partly by motor vehicle and partly by rail, express, or water."

Subdivision 12 reads: "The term `highway' means the roads, highways, streets, and ways in any State."

Under various subsections the terms "motor vehicle," "common carrier by motor vehicle," "contract carrier by motor vehicle," "motor carrier," "private carrier of property by motor vehicle," and "broker" are defined.

Subdivision 19 reads: "The `services' and `transportation' to which this chapter applies include all vehicles operated by, for, or in the interest of any motor carrier irrespective of ownership or of contract, express or implied, together with all facilities and property operated or controlled by any such carrier or carriers and used in the transportation of passengers or property in interstate or foreign commerce or in the performance of any service in connection therewith."

Subdivision 20 reads: "The term `interstate operation' means any operation in interstate commerce."

Under subsection (b) of section 303 are described the vehicles excepted from the operation of this act.

Section 304 describes in exhaustive detail the powers and duties of the Interstate Commerce Commission in the enforcement of this law.

Section 305 describes in what manner the Commission shall administer the provisions of the Motor Carrier Act.

Section 306 relates to the certificate of convenience and necessity, and in part reads: "No common carrier by motor vehicle subject to the provisions of this chapter shall engage in any interstate or foreign operation on any public highway, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing such operations."

Section 307 describes the issuance of the certificate, and subsection (b) thereof reads as follows:

"Certificate not to confer proprietary or property rights in highway. No certificate issued under this chapter shall confer any proprietary or property rights in the use of the public highways. (Feb. 4, 1887, c. 104, Part II, § 207, as added Aug. 9, 1935, c. 498 [§ 1], 49 Stat. 551.)"

Section 308 describes the terms and conditions of the certificate, the specification of routes and termini, extension of routes, and restriction on additions to equipment.

Section 325 reads as follows:

"Investigation of motor vehicle sizes and weights and qualifications and hours of service of employees

"The Commission is hereby authorized to investigate and report on the need for federal regulation of the sizes and weight of motor vehicles and combinations of motor vehicles and of the qualifications and maximum hours of service of employees of all motor carriers and private carriers of property by motor vehicle; and in such investigation the Commission shall avail itself of the assistance of all departments or bureaus of the Government and of any organization of motor carriers having special knowledge of any such matter. (Feb. 4, 1887, c. 104, Part II, § 225, as added Aug. 9, 1935, c. 498 [§1], 49 Stat. 566.)"

Section 327 reads:

"Effective date of chapter

"This chapter (except this section, which shall become effective immediately upon approval) shall take effect and be in force on and after the 1st day of October 1935: Provided, however, That the Commission shall, if found by it necessary or desirable in the public interest, by general or special order, postpone the taking effect of any provision of this chapter to such time after the 1st day of October 1935, as the Commission shall prescribe, but not beyond the 1st day of April 1936. (Feb. 4, 1887, c. 104, Part II, § 227, as added Aug. 9, 1935, c. 498 [§1], 49 Stat. 567.)"

The main question before us for decision is: Does the Federal Motor Carrier Act confer upon the Interstate Commerce Commission the exclusive power of issuing a certificate of public convenience and necessity to motor vehicles operating upon the highways wholly in interstate commerce? Until this act was passed by Congress, there was some confusion among the decisions of the courts as to the power of the state to require a motor vehicle operating on the highways wholly in interstate commerce to obtain a permit of public convenience and necessity. Since the enactment of this law, in our judgment, that question is removed, and a decision thereof becomes immaterial.

It is common knowledge that many of the highways in this state were built, and are now being built, with federal aid, by virtue of and pursuant to federal laws. Act of July 11, 1916, c. 241, 39 Stat. 355, as amended February 28, 1919, c. 69, 40 Stat. 1189, 1200, and the Federal Highway Act, November 9, 1921, c. 119, 42 Stat. 212 (as amended, ...