Texas Indus. Traffic League v. Railroad Commission of Texas, 13380

• Decision Date: 03 February 1982
• Docket Number: No. 13380,13380
• Citation: 628 S.W.2d 187
• Parties: TEXAS INDUSTRIAL TRAFFIC LEAGUE, et al., Appellants, v. RAILROAD COMMISSION OF TEXAS, et al., Appellees.
• Court: Texas Court of Appeals

Page 187

628 S.W.2d 187

TEXAS INDUSTRIAL TRAFFIC LEAGUE, et al., Appellants, v. RAILROAD COMMISSION OF TEXAS, et al., Appellees.

No. 13380.

Court of Appeals of Texas, Austin.

Feb. 3, 1982.

Rehearing Denied Feb. 24, 1982.

Deborah A. Chadbourne, Irving, Daniel J. Sweeney, Steven J. Kalish, Belnap, McCarthy, Spencer, Sweeney & Harkaway, Washington, D. C., for appellants.

Mark White, Atty. Gen., R. Lambeth Townsend, Asst. Atty. Gen., John R. Whisenhunt, Robinson, Felts, Starnes & Latting, Austin, for appellees.

ON MOTION FOR REHEARING

POWERS, Justice.

The opinion of this Court handed down on December 2, 1981, is withdrawn, and the following opinion replaces it.

Appellants are three organizations: Texas Industrial Traffic League, National Small Shipments Traffic Conference, and Drug and Toilet Preparation Conference. Appellees are the Texas Railroad Commission and a corporation named Common Carrier Motor Freight Association, Inc. (CCMFA).

The Commission represents the public interest in the exercise of its power, and the performance of its duty, "to fix, prescribe or approve the maximum or minimum, or maximum and minimum rates, fares and charges" made by motor carriers for their intrastate services. Tex.Rev.Civ.Stat.Ann. art. 911b, § 4(a), (d) (1964). It may be said that appellants are organizations of customers, or the users of motor carrier services, who would have an interest in lower shipping rates, while CCMFA is an organization of motor carriers who furnish such shipping services and would have an interest in higher rates.

In the present case, an application was made to the Commission for an average rate increase of 8.1 percent in motor carrier rates. Appellant organizations appeared in the Commission proceedings and resisted the increase. When the Commission promulgated the increase, appellants "appealed" to the district court seeking judicial review of certain errors they claimed were made in the Commission proceedings. The Commission was made the party defendant in such "appeal" and CCMFA was allowed to intervene.

In the district court proceedings, the Commission raised by oral argument, under its previously-filed general denial, the question of whether appellant organizations had "standing" to maintain the suit for judicial review. The trial court did not specifically rule on the question of standing; indeed, it is not clear that the Commission specifically requested the court to do so by motion or otherwise. Nevertheless, the trial court impliedly overruled any objection to appellants' standing when the court affirmed the Commission decision on the merits. The record does not reflect that any appellee objected to such action by the trial court. CCMFA does, however, raise the issue of standing by cross point in its brief in this Court. We need not determine if appellee's failure to object in the trial court was a waiver of the error under the rule of West Texas Utilities Co. v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960). This is so because we view the standing objection in this Court, made by CCMFA's cross point, as raising a question of fundamental error touching upon our power to consider the appeal, as discussed below.

CCMFA contends that appellants lack standing because none of them actually ship or receive freight moving by motor carrier within the State; that they are mere "traffic conferences" composed of shippers and receivers of freight; that the rates established by the Commission cannot, therefore, be unreasonable or unjust as to them, which refers to the burden set in Tex.Rev.Civ.Stat.Ann. art. 911b, § 20 (1964) upon those who seek judicial review of the Commission's decisions; ¹ that appellants therefore can show no "special injury"; that appellants have failed to identify any specific shipper who will be required to pay an unjust or unreasonable rate on any specific commodity moving between any two points in the State; that appellants, for these reasons, cannot be persons aggrieved by the Commission's decision, referring to a statutory qualification set out in Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(a) (Supp.1980) for those who would seek judicial review of any administrative agency decisions; ² and, the rendition of any judgment in this case, under these circumstances, would amount to our rendering an advisory opinion, which character of decision it is not within our power to give.

In response, appellants contend they are each a party at interest within the meaning of section 20 of the Motor Carrier Act and are, therefore, entitled to judicial review thereunder; that no Texas decision has ever denied organizations such as they the "standing" to maintain an administrative appeal of an order promulgating shipping rates; that, indeed, the courts of the State have in fact reviewed such cases, in one of which these very appellants were involved; that appellants' members are substantial companies and customers of the regulated motor carriers who obtained the rate increase; that appellants' members are therefore "hurt" by the increased and allegedly improper rates; and, that no person has suffered a "special injury" as a result of the increased rates and no showing of such should be required as a condition of standing to challenge the rates.

We should add that the record discloses or suggests that appellants are unincorporated voluntary associations, ³ alleged in their petition in district court to have over 300 members who ship or receive freight subject to the rates set by the Commission; that none of appellants' ostensible members were designated parties in the Commission proceedings and none were parties in the district court proceedings in judicial review of the Commission's decision; that it is undisputed that none of the three appellants themselves are actual shippers or Having stated the substance of the record before us, we turn to the merits of the attack made upon appellants' standing to maintain an action for judicial review of the Commission's decision which sets higher shipping rates. We assume for the present that the members of the appellant-organizations will, indeed, have to pay any increased rates.

receivers of freight; and that the extent of any effect of increased rates on the associations' members was not a subject of proof, either in the Commission proceedings or those in district court.

DO APPELLANTS HAVE STANDING TO MAINTAIN A SUIT FOR JUDICIAL

REVIEW UNDER THE MOTOR CARRIER ACT, § 20

AND TAPTRA, § 19(a)?

Appellant's suit is one to control, by judicial review, the official actions of a public agency-the Commission. The law of standing, as developed in Texas in such "public actions," is somewhat complicated. It has evolved from the earliest days and is not yet settled. While the present appeal involves a suit for judicial review, on "appeal" from an agency, the law of standing is applicable alike to such "appeals" and to suits brought originally in district court with the same aim of controlling official action. Moreover, the law of standing included a rule which required a showing of "special injury" as an essential element of standing to bring a public action. This venerable rule is said to have been abandoned by the Supreme Court of Texas. See Spears & Sanford, "Standing to Appeal Administrative Decisions in Texas," 33 Baylor L.Rev. 215 (1981). In view of the foregoing, a general review of the cases, from an analytical standpoint, is unavoidable and will make clear our reasons for remand of the present case for further development with respect to the issue of standing.

We start with the general rule of the common law that only a person whose legal right has been breached or adversely affected by another may assert a claim thereon. Stated another way, one may not maintain an action based upon the harm suffered by another. Nobles v. Marcus, 533 S.W.2d 923 (Tex.1976).

Having set out the general proposition that one may not maintain an action based upon harm to another, we hasten to point out that this proposition is honeycombed by exceptions. Such exceptions have been the result of changes in the common law, for example the common law fiction of "virtual representation," applied in Mason v. Mason, 366 S.W.2d 552 (Tex.1963). They have been the result of rules of procedure, for example the formal class action procedure authorized by Tex.R.Civ.P. 42. They have been the result of statutes, for example Tex.Rev.Civ.Stat.Ann. arts. 4675 (1952), 8306, § 8a and § 13 (1967), which permits representatives to maintain wrongful death and personal injury actions based upon the death or injury of another.

It is apparent in the case before us that if anyone is harmed by increased shipping The Legislature's enactment of Section 20 of the Motor Carrier Act and Section 19(a) of TAPTRA constitutes an attempt by that body to confer upon certain participants in Commission proceedings the right to have judicial review of the Commission's decisions and actions. Appellants contend that these statutes give them the right to such judicial review as organizations representing the interests of their members in the shipping rates set by the Commission, even though the organizations will not have to pay such rates themselves. Assuming the statutes to be susceptible of that interpretation, and we believe they are, we must measure them against the constitutional prohibitions against the rendition of advisory opinions and the decision of political questions, the foundation of the "special injury" requirement that has long been a barrier to suits aimed at controlling official actions by resort to the courts.

rates, it is probably not the appellant-organizations. These organizations have not alleged or shown that they, as organizations, will be affected by the higher rates. It is transparent, however, that appellant-organizations do not claim or rely upon any effect upon themselves but wish, instead, to represent the interest of their members in lower shipping rates in the...