- -
GERALD C. MANN AUST,U~ 111.-rExAn
Honorable James E. Kilday, Director
Motor Transportation Division,
Railroad Commission of Texas,
Austin, Texas
Dear Sir:
Opinion No. O-1518
Re: Whether a person can hold a
certificate of public conven-
ience and necessity, and at
the same time hold a special
commodity permit.
We received your letter of September 29,1939, requesting our
opinion of the following question:
“Whether, under the Motor Carrier Laws of Texas,
a person may hold a certificate of public convenience and
necessity authorizing common carrier truck service, and,
at the same time, a special commodity permit authorizing
transportation of certain specified commodities by truck?”
Article 911b, Vernon’s Annotated Civil Statutes, being H. B. No.
335, Ch. 277, p. 480, Acts 42d Legislature, as amended; reads in part
as follows :
“Section 1. Definitions. -- When used in this act un-
less expressly stated otherwise: . . .
“(e) The term ‘certificate’ means certificate of pub-
lic conven.ience and necessity issued under this act.
“(f) The term ‘permit’ means the permit issued to
contract carriers under the terms of this act.
“(g) The term ‘motor carrier’ means any person,
firm, eorpotation, company, co-partnership, association
. ”
Hon. James E. Kilday, Page 2, O-1518
or joint stock association, and their lessees, receivers or
trustees appointed by any court whatsoever owning, con-
trolling, managing, operating or causing to be operated any
motor-propelled vehicle used in transporting property for
compensation or hire over any public highway in this State,
where in the course of such transportation a highway between
two or more incorporated cities, towns or villages is tra-
versed; provided, that the term ‘motor carrier’ as used in
this act shall not include, and this act shall not apply to
motor vehicles operated exclusively within the incorporated
limits of cities or towns.”
Section 6(d), as amended in ~1937, reads in part as follows:
“The Railroad Commission is hereby given authority to
,issue upon application to those persons who desire to engage
in the business of transporting for hire over the highways of
this State livestock, mohair, wool, milk, livestock feedstuffs,
households goods., oil field equipment, used office furniture
and equipment, timber when in its natural state, farmmach-
inery and grain special permits upon such terms, conditions
and restrictions as the Ra~ilroad Commission may deem proper,,
and to make rules and regulations governing such operations
keeping in mind the protection of the iighways and the safety
of the traveling public * * *.”
We call your attention to Section 6(d) which gives the Railroad
Commission authority to issue special commodity permits “upon such
terms, conditions and restrictions as the Railroad Commission may deem
proper”. This section is followed by Section b(bb) which reads as follows:
“No application for permit to operate as a contract car-
rier shall be granted by the Commission to any person oper-
ating as a common carrier and holding a certificate of con-
venience and necessity, nor shall any application for certifi-
cate of convenience and necessity be granted by the Commis-
sion to any person operating as a contract carrier nor shall
any vehicle be operated by any motor carrier with both a per-
mit
- and a certificate.,”
. I
Hon. James E. Kilday, Page 3, O-1518
Section b(bb) prohibits a common carrier from holding a con-
tract permit and prohibits a contract carrier from holding-a certificate
of public convenience and necessity. Section 6(bb) then provides “nor
shall any vehicle be operated by any motor carrier with both a permit
and a certificate.” We reach the conclusion that a special commodity
permit is a permit as that term is used in Section 6(bb).
On July 16, 1931, Hon. T. S. Christopher, Assistant Attorney
General, rendered an opinion to the Railroad Commission of Texas on
the following question:
“Please advise whether under your construction of
Sections 6d and 6bb of H. B. No. 335, Acts of the Regular
Session of the Forty-first Legislature (Forty-second Legis-
lature), a person can hold a Common Carrier Certificate or
Contract Carrier Permit, and also a Special Permit author-
izing the transportation of the articles named in such Section
6d.”
The opinion, in part, reads as follows:
,“You are advised that under the provisions of the Act,
as referred to, the holder of a certificate of convenience and
necessity is not permitted to hold, in addition thereto, a con-
tract carrier permit nor a special commodity permit.”
We are unable to agree with Mr. Christopher’s contention
~that his opinion was dicta in so far as it discusses the question raised
inyour letter. We wish to point out that the same specific question was.
raised in the above-quoted opinion and is answered in Mr, Ch$.topber’s
oprmn.
Sections 6(d) and b(bb), Art. 911b, became effective on June 6,
1931. Shortly thereafter, to be exact, July 16, 1931, the Attorney General’s
department rendered an opinion to the effect that a common carrier could
not hold a special commodity permit. The Railroad Commission has con-
sistently followed the construction set out by the above opinion. Since the
enactment into law of the special commod,ity clause in 1931, the Railroad
Com,mission has never construed Section 6(d) and b(bb) to permit a com-
mon carrier to hold a special commodity permit. The Legislature has
Hon. James E. Kilday, Page 4, O-1518
never seen fit to change the verbiage to show a contrary intention. It is
reasonable to presume that the correct construction was placed on Sec-
tions 6(d) and 6(bb).
We might say that we are unable to find any language in the
Motor Carrier Act which would permit a common carrier to hold a spe-
cial commodity permit. To the contrary, the evident intention of the Legis-
lature was to prohibit a common carrier from operating in another field.
Since the Motor Carrier Act prohibits the operation of any mo-
tor vehicle by any motor carrier with both a permit.and a certificate, it
follows, for reasons herein stated, that a holder of a certificate of public
convenience and necessity cannot at the same time hold a special commod-
ity permit.
Yours very truly
ATTORNEY GENERAL OF TEXAS
Glenn R. Lewis
Assistant
By Gz2/ 4+-w-
Lee Shoptaw
LS-MR
APPROVED NOV 8, 1939
ATTORNEY GENERALOF TEXAS
APPROVED
OPINION
COMMITTEE
By B. W. B.
Chairman
Untitled Texas Attorney General Opinion
Combined Opinion