“.’ 856
Xonorable James E. Xilday
Direotor, Motor Transportation Dlvlslon
Railroad Commission of Texas
Austin, Texan
Dear 31rz Oplnlon no. o-2795
Re: Uhether a sales agent
Bust have permit or cer-
tificate in order to
&awfully deliver machln-
cry sold by him on a com-
mission basis.
In your letter of October 1, 1 40, supplemented
by another from you dated October 30,, 19z 0, you submit to
-us the following facts: Mr. J. H. Cook of Dallas, Texas,
la a sale8 agent for L. B. Bllllngsly Maohlne and Supply
Company of Dallas, vhloh company sells dry cleaning and
.:j::j:j::.I:~ :::ti.:
laundry machinery and equipment. When Mr. Cook sells an
order of goods for said oompany, he receives a commission
varying from nine to twenty peroent on the sale price. Mr.
Cook has acquired a truck and proposes to make delivery
of machinery and equipment sold by hlm.~ We are advised
that the Billingsly Company has nothing to do with the de-
livery of equipment to Mr. Cookls customers. The company
has one price on all equipment and the price is figured
f. o. b. Dallas. There is no change made in the price
and it does not matter vhether Mr. Cook delivers the e.quipL
ment or whether it Is shipped by truck line. In any event
the prloe to be paid by the customer is the same. .i4r. Cook
and the Billing8ly Company have no agreement pertaining t0
the delivery of the equipment sold by Mr. Cook, the latter
simply doing the same as a personal business advantage.
. ..
Honorable ‘J-es X. Kllday, Page 2
/4 .
As ve understand, fir, Cook’8 oomlsslon is the
same whether he delivers it or not. IA COAAeCtiOA vith
the sale, Ur. Oook ordinarily agrees to deliver the ma-
ahlnsry to the cwtomer a.nd make the installation. You
request our opinion in responee to three questions read-
ing as follovrr
“First
, “Ia this a carriage of goods for hire or
compensation .vlthin the meaning
. of the Motor
Carrier Aot? ’
.
“Second
*If you anaver the_ f oregolng
. . queatlon . .In
the affirmative, then mat anarao1;er or autnor-
ization should lb?. Oook have from this Cumls-
slon in order lavfully to haul aaid goods?
\
‘Third
“X8 it unlawful, under the Texan Hotor Car-
rier Act for Hr. Cook to perform the truck aerv-
lee mentioned above without any manner of author-
ity from this Cc4nmlsslonlw
The regulation of motor carriers in Texas is pro-
%vided by drtlole glib, Pernon’cl Civil Statutes. Subdloimions
(g) and (h) of Section 1 and ?eotions 2 and T of said Artlole
read gs followr :
“(g) The term ‘motor carrier* raeam any
person, flra, oorporatlon, oompany, oo-partner-
ship, association dr jo$nt atook association,
and their lesreer, reoeivers or trustee8 ap-
pointed by any Court vhatsoever, oimlng, oon-
trolling, managing, operating or causing to be
operated any motor propelled vehicle ured in
transporting property for compensation or hire
. over any pub110 highway in this State, where
in the course of such transportation a highway
between tvo or more lnoorporated cities, towns
or villages 10 traversed; provided that the
term fmotor carrlert as used ln this Aot ehall
not include, and thlr dot shall not apply to mo-
tor vehioles operated exclusively within the
..
i--
. .
858
Honorible James E. Kildey,. Page 3
Incorporated lImIta of altIe or ‘towns,
“(h) The .tenr toontraot carrier’. means sny
motor, oarrier 88 hereInabov4 defined transport-
ing property for oompensatfon or hire over any
highvsy in thlr. State other than 88 a commoncer-
rler. (Aots 1929, 41rt Leg., p. 6 8 oh. 314 8~
amended Aat8 1931, &nd Leg., p. 4zO: oh. 277: i 1.) .
‘840. 2. Ho motor carribr, aa defined In
the preoedlng reotlon, ahall operate any motor
propelled vehIal4 for th4 purpose of the transpor-
tation of aarriage of property for ccmpensatlon or
hire over any pub110 hlghvap In the Stat4 except
In aooordancs vith the provlrlona of this Actj pro-
,vIded, hovevei, that nothing In this Aat or any
provision thereof 8hall be construed or held td In
any manner affsot, limit or deprive oities and
town8 frcaa bxerclslng any of the pover8 granted
them by Chapter 147, Page8 307 to 318, inclusive,
of the Ctenerel Law of th4 State of Texas passed
by the 33rd Legislature or &ny amendments thereto.
(lots 1929, 41rt Leg,, p. 698, ch. 314, as amended
Aots 1931, k&d Leg., p. 480, 6h.~ 277, i 2.)
“Sea. 3. Ro motor osrrler shell, after this
Aot goes into effeot, operate a8 a commoncsrrler
vithout first having obtained from the Oommlsslon,
under the proylalons of thI8 Act, 8 oertiflcate of
publio aonvenienoe and neoesaity pursuant to 8
_ findGag to the effeot that the pub110 oonvenlence
and necessity require 8uch operation. I70 motor car-
rier ahall, after this Aot goes Into effeat, oper-
et4 aa 8 contract carrier vithout flrrt having ob-
l talned from the Oommi~~lona permit 80 to do which
permit shall not be Issued until the applicant
shell have ln all things complied with the requlre-
ments of this Act. (Acts 1929, 41st L4g., p. 698,
eh. 314, es amended Acts 1931, 42nd Leg., p. 480,
ch. 277, # .3.)”
Ye understand that the operation in question con-
t&plstes the carriage of property over the pub110 highvays
In this State, vhere in the cour8e of ouch transportation
highways between tvo. or more Incorporated OItle8, tOvm or ’
_~
8.59
Ronorable.James E.‘Kllday, Page 4
villages would be traversed. IA detemnlnlAg whether Mr.
Cook vould be subject to regulation by the Railroad Con-
mls8lOA, ve sre OOAfrOAtedwith only the one question as _
to whether her vould be "transporting property for compen-
aatlon or hire."
I
IA the case of Rev Way Lumber Company VS. Smith;
96 3. W. (2d) 282, the Lumber Companyvas making delivery
of lumber in it8 ova trucks, making an extra charge for
hauling such lumber, based upon weight of truck aAd die-
taace traveled. The Supreme Court held in that case that
such operation vas that of a contract carrier end IA vlo-
latlOn Of the statute, since 110permit was held vhlch au-
thorized such carriage. From the opinion we quote:
“Under the facts at&ted here the carry-
ing of lumber ovAed by the company IA it% ovn
trucks does not exempt it from the provisions
of this lab’. This is not 8 case where the
tXWCk8are operated eicluslvely within the ln-
corporated limltd of a town or oltyj nor is it
a case vhere the price of the-goods delivered
.iS the same as those undelivered, On the con-
trary, it is clearly a case where the price
of the lumber includes a direct charge for the
delivery thereof. The 'carrying charge is based
directly OA the distance traveled end the
weight of the truck. Since the company receives
oompensatlon for the delivery of the lumber,it
clearly appears that the trucks used come under
the definition of 8 ~ccontract CerritC,' and are
Subject to the provisions of article 9llb.'
The difference between the NewWay Lumber company
Case end the one at hand 18 readily apparent. There 18 A0
difference in the. COSt to the oustomer whether the property
is delivered to him or whether he goes to the place of busi-
neaa of the Bllllngsly Companyand gets it. Judge Sharp vas
careful to point out In his above opinion that it vas not
“a case-where the price of the goods delivered is the same
as those undelivered.” It is our opinion that the statute
vas never meant to regulate such a carriage as the one
shovn IA the facts presented by you. Doubtless, in a vay,
Rr. Cook vlll be oompensated for his efforts in traAapOrt-
lng this machinery and equipment in that he will be able to
make more sales eAd therefore inorease his OoInmiSSiOAs.
. -..
060
Honorable James B. Kllday, Page 5
Revertheless, Ve believe thit his compensation 18 in the
nature of a commlsslon for making the sale and f.8 not oom-
pensatlon or hire for transporting the machinery over the
highvaya. We ansver both your first and third question8
in the negative, making an enaver to your SeCOAduAneces-
nary.
Yours very truly
ATTORNEY
CERKRAL
OF TEXAS
BY /a/ Glenn B. L4vis
0
Q&LA R. &3ViS
Assistant
QRLtewret
.- APPROVRD
BOV, 6, 1940
/a/ Gerald C. XaAA
ATTORNEY
OSNEEAL
OF TEXAS
APPROVRD BY TEE OPINIORCOMMITTIE
BY /S/ BWB; ChairmSn~
.
I
Untitled Texas Attorney General Opinion
Combined Opinion