Railroad Commission of Texas
Austin, Texas

Gentlemen:           Opinion Ro. O-3176
                    Re:   Whether Railroad Commission
                          may Issue special commodity
                          permit to one who holds cer-
                          tificate from I.C.C. author-
                          izing the transportation
                          interstate of the same com-
                          modities.
           We acknowledge receipt of your letter of February
17, 1.941, wherein you advise that you have become conslder-
ablr confused in your efforts to make literal application of
our"opinion Ro. o-1633. Therein we expressed the view that
"an interstate common carrier cannot at the same time hold
an intrastate special commodity permit."
          The present difficulty arises from the faot to
which you call our attention that the Interstate Comyerce
Commission does not issue "special commodity permits under
that name; but, it does lnsue authorizations limited.to the
transportation interstate of the same commodities as are
mentioned in that part of our statute authorizing the is-
suance of special commodi.typermits but calls them "common
carrier certlfioates" or "limited common carrier oertlfl-
cates." You have interpreted OUPopinion as holding that
one may not hold a special commodity permit issued by the
Railroad Commission and at the same time have a certificate
from the I.C.C. authorizing the transportation interstate of
the same commodities as those described in the special com-
meaty permit--since the I.C.C. considers and calls the au-
thority issued by It a common carrier oertlficate.
           You provide us with the following specific illus-
tration:
Railroad Commission   of Texas, Page 2   (O-3176)


          "For example, C. D. Newsom, an individual,
     is the owner, holderand operator   of intrastate
     special commodity permit No. 12792 heretofore
     Issued to him by this Commission. Very recently
     he filed an application with this Commission
     seeking an amendment of the heretofore mentioned
     special commodity permit so as to remove certain
     highway restrictions and generally increase the
     authority given under his said permit. The tran-
     script of the evidence adduced at the hearing
     held by the Commission on this particular appli-
     cation established that the said C. D. Newsom
     was the owner, holder and operator of a limited
     common oarrler certificate issued to him by the
     Interstate Commerce Commission authorizing the
     transportation of the same commodltles in inter-
     state commerce as are allowed by his Intrastate
     special commodity permit. A plying your opinion
     No. O-1633, dated December 1rs, 1939, this Commis-
     slon entered its order denying the application
     of C, D. Newsom on the grounds that under your
     said opinion the intrastate special commodity
     permit of C. D, Newsom was void and it was im-
     possible to amend a void permit."
          You have attached to your letter a copy of the
Commission's order denying Mr. Newsom's application and it
appears to be based solely on such interpretation of that
opinion,
          You request OUPopinion as to whether your decision
concerning the Newsom application was required by our said
opinion No. O-1633. You give us the following information
relative to departmental construction and practloes
           "Over a long period of years it has been
      the custom and practice of this Commission to
      issue special commodity permits couched in gen-
      eral language to the effect that the permittee
      is authorized to aarry for hire oertain special
      commodities named in the statute within a cer-
      tain given area or territory; and these special
      commodity permits, so worded, have been construed
Railroad Commisalon of Texas, Page 3   (0-3176)


     by this Ccnzmissionover a long period of time
     to bestow both interstate and intrastate rights
     upon the permittee--that is to say, they have
     been construed to bestow the right to carry
     these special commodities intrastate within the
     stated territory or area; and,,in addition, the
     right to use'the highways of Texas as a limited
     common carrier in the transportation of the same
     commodities in Interstate commerce within the
     same area. And it has been the usual custom and
     practice of this Commission that, if a permittee
     holding such a permit, so worded, should later
     go to the Interstate Commerce Commission and pro-
     cure a certificate of public convenience and
     necessity from that Commission authorizing him
     to carry for hire in interstate commerce the
     same oommodities named in his special commodity
     permit issued by this Commission within the same
     area, then and In that event, under the policy
     and practice of this Commission In existence for
     a long period of time, It was not necessary for
     him to come baok to this Commission for any addi-
     tional authority to use Texas roads in Interstate
     commerce over and above what he already had under
     his intrastate special commodity permit.
          It is also shown in your letter that a great number
of special commodity operators in Texas also hold such "corn-
mon carrier certificates," limited to the same commodities,
Issued by the I. C. C.
            As a matter of fact, in writing the oplnion refer-
red to we were not thinking of such a situation as this. We
had in mind, when speaking of a common carrier, one whose
operations would constitute him a common oarrier under the
Texas statute  --one who would be required to obtain a common
oarrler certificate from the Railroad Commission In mder to
legally conduct his operations in this State, and who pre-
sumably has complied with the law and obtained such certi-
ficate.         By way of review, that opinion was based upon
3ections 6(d) and 6(bb), Vernon's Annotated Civil Statutes,
reading as follows:
Railroad Commission of Texas, Page 4   (O-3176)


          "Section 6(d). The Rallroad 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 high-
     ways of this State, livestock, mohair,  wool,
     milk, livestock feedstuffs, household goods, 011
     field equipment, and used office furniture and
     equipment, timber when in its natural state,
     farm q aahinery, and grain special permits upon
     such terms, conditions, and restrictions as the
     Railroad Commission may deem proper, and to make
     rules and regulations governing such operations
     keeping in mind the protection of the highways and
     the safety of the traveling public; provided, that
     if this Act ,orany section, subsection, sentence,
     clause, or phrase thereof, is held unconstitution-
     al and invalid by reason of the inclusion of this
     Subsection the Legislature hereby declares that
     it would have passed this Act and any such Section,
     Subsection, sentenae, clause  or pbrase thereof
     without this Subsection. (As'amended Acts 1937,
     45th Leg., p. 651, ch. 321, para. 1.)"
          "Section 6(bb). Ro application for permit
     to operate as a contract carrier shall be granted
     by the Commission to any person operating as a
     common carrier and holding a certificate of con-
     venience and necessity, nor shall any application
     for certificate of convenience and necessity be
     granted by the Commission to any person operating
     as a contra& carrier nor shall any vehicle be
     operated by any motor carrier with both a permit
     and a certificate. (Acts 1931, 42nd Leg., p. 480,
     ch. 277, para. 6.)"
           We do not belleve that Section 6(bb) was intended
to forbid the same person's holding a special commodity per-
mit issued by the Rai~lroadCommission and a certificate is-
sued by the Interstate Commerce Commission authorizing the
carriage interstate of merely  the same commodities regard-
less  of the name by which the latter instrument is called.
In Sec. l(e), Art. glib, it is provided that "The term
 'certificate1 means a certificate of public convenience
Railroad Commission of Texas, Page 5   (0-3176)


                           this Act." Sec. 3 prohibits
and necessity issued under --
anv common carrier motor carrier operation In this State
except under authority of a oertificate issued by the Com-
mission. This applies even to purely Interstate operations,
although, of course, the issue of convenience and necessity
is not In such cases. Thompson vs. McDonald, 95 Fed. '(2)
937; Winton vs. Thompson, 123 S.W. (2) 951, error refused.
Hence, we think it evident that when the word "certificate"
was used in Section 6(bb) it had reference to a certificate
issued by the Railroad Commission.
          The tllmeby which the document issued by the I.C.C.
is called Is not so Important. It is our opinion that your
action on the Newsom application was erroneous and our
opinion No. O-1633 Is restricted In such way as not to be
susceptible of the interpretation thus given It.
          You also give us this other illustration of your
actions in following that opinion:
          "Another example: In the application of
     M. A. Davis Transport, Inc., Docket No. 9647,
     applicant Is the owner, holder and operator of
     contract carrier permit No. 11407 and he at-
     tempts, by said application, to amend his said
     contract carrier permit. However, the evidence
     adduced at the hearing Andyour records reveal
     that he is the owner of an interstate common
     carrier certificate authorizing him to transport
     certain mopertg for hire in interstate commerce.
     The Commission, in applying your opinion No.
     o-1633 to this application denied the same for the
     reason that contract carrier permit Ho. 11407 is
     void and can not be amended because the commission
     has construed your opinion to mean that a person
     may not own a contraot carrier permit and, at the
     same time, own an Interstate common oarrier cer-
     tificate,
          "In conneotion with this latter example, the
     authority as a common carrier from the Interstate
     Commerce Commission is coextensive, so far as com-
Rallroad CornmissIonof Texas, Page 6      (0-3176)


     modifies are concerned, with a spealal commodity
     permit issued by this Commission--this concern
     having obtained from this Commission both a oon-
     traot carrier permit and, in addition, a separate
     and different so-called 'double barrelled' spec-
     ial commodity permit."
          And you inquire whether the Commission erred in so
applying OUP opinion to PI.A. Davis Transport, Inc. We are
constrained to say that the Commission did err. The statute,
Art. glib, contains no inhibitions against a perso& holding
a contract carrier permit and a special commodity permit at
the same time. As noted above, the I.C.C. certlfioate author-
izing the oarriage of the same articles interstate as are
included in the special commodity permit and limited to those
artioles should not be considered a co~mmoncarrier certifl-
cate so as to forfeit the operator's rights under his permits
from the Fallroad Commlsslon.
            You ask our opinion also in response to this ques-
tion:
          "When you held in your said opinion that
     one and the same person could not hold a special
     commodity permit Issued by this Commission, on
     the one hand, and a certifioate of public conven-
     ience and necessity issued by this Commission
     authorizing the holder thereof to use Texas high-
     ways in Interstate commerce as a common carrier,
     on the other hand, did you intend thereby to hold
     that the holder of a special commodity permit is-
     sued by this Commission and couohed in the general
     language aforesaid oould not, at the same time,
     use and utilize such a permit as authority to use
     Texas roads in interstate commerce under a limited
     common carrier certificate issued by the Interstate
     Commeroe Commission which staidcertificate is co-
     extensive as to commodities with those named in
     said special oommodlty permit?"
          From what we have already said our answer to the
immediately above question is that we did not so intend.
            You also ask this question:
             “May the holder of a contract carrier permit
        issued by the Railroad Commission of Texas at the
Railroad Commisslon of Texas, Page 7   (0-3176)


     same time hold 2 certifioate as a common carrier
     issued by the Interstate Commerce Commission?"
          Our answer to this question as submitted is an af-
firmative one. However, if his I.C.C. certificate is a
common carrier certificate (as tested by the State statute)
and thus confers a broader authority than is embodied in the
contraot carrier permit, he will be unable to legally operate
his I.C.C. certificate in Texas until he obtains a certifioate
from the Railroad Commission in which event he will thus run
into the prohibition of Section 6(bb).
          This question is also submitted:
          "May one and the same person hold a special
     commodity permit issue&by this Commission, on
     the one hand, and a certificate of public conven-
     ience and necessity issued by the Interstate Com-
     merce Commission, applicable to (a) this State OP
     (b )to another State, exclusive of this State,
     on the other band?"
          The same person may hold a special oommodlty permit
Issued by the Railroad Commission and a certificate of public
convenience and necessity Issued by the I.C.C. and operate
both of them if the latter authority limits the commodities
to be hauled to the same ones as those described in the spec-
ial commodity permit. He can hold and operate common carrier
certificates issued by the I.C.C. authorizing general common
carrier operations in other states at the same time that he
holds a special commodity permit issued by the Railroad Com-
mission, However, he cannot lawfully operate an I.C.C. cer-
tificate authorizing general common carrier operations in
Texas without having a certificate from the Railroam Commis-
sion authorizing the use of the highways itisuch operations.
And, he cannot hold that certificate and the permit at the
same time.
          You also submit the following question:
          Where a motor carrier owns a Special Com-
     modity Fermit issued prior to 1935, and subse-
     quently, receives a certificate from the Inter-
     state Commerce Commission authorizing such cap-
     rier to transport the same commodities in the
Railroad Commission of Texas, Page 8   (O-3176)


     same territory in Interstate commerce as his
     Special CommodFty Permit authorizes in intra-
     state commerce, does the Railroad Commission
     have authority to grant an application of such
     motor carrier for amendment of such Special
     Commodity Permit?"
          From what we have already said, our affirmative
answer follows to this question.
                                       Very truly yours
                                ATTCMEYQENERALOFTEXAS
                                By     /s/ Glenn R. Lewis
                                           Glenn R. Leais
                                                Assistant

GRL:ej
APPROVEDMAR. 5, 1941
/s/ Gerald C. Mann
ATTORNBYGENERALOFTEXAS

APPROVED OPIHIOR COMMITTEE
m. /s/ mm CEAIR~
