Mr. Norman Manning                                   Opinion No. M- 458
County 4ttorney
Williamson County                                    Re: Specialized Motor Carrier
Georgetown, Texas                                        Certificate No. 15465;
                                                         Interpretation of Certificate
                                                         with Respect to the Trans-
                                                         portation of Lime

Dear Mr. Manning:

   You have requested   an opinion of this office as to the following:

       1. Does the term “any material”,    as it is used in the first
          line of Specialized Motor Carrier Certificate No. 15465,
          include lime?

       2. Does the phrase “to any construction jobsite or processing
          plant in Texas”, as it is used in Specialized Motor Carrier
          Certificate No. 15465, allow the holder of this certificate
          to transport lime to:

              (a) any oil and gas refining     company in Texas;

              (b) the Union Carbide processing         plant located
                  near Houston, Texas;

              (c) any steel processing      plant;

              (d) any and all cities in Texas for the treatment of
                  water processed by the cities for public consumption;

              (e) any processing plant where lime is used for acid
                  purification; or

              (f) any processing   plant?




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Mr. Norman Manning,      page 2 (M- 458)


        3. Does Specialized Motor Carrier Certificate No. 15465
           allow the carrier to haul lime from points of origin
           other than Williamson County to any “processing plant
           in Texas or other place in Texas desired by the receiver
           or shipper of such commodity” when the carrier passes
           through Williamson County?

    The certificate to which your inquiry relates,     Specialized Motor Carrier
Certificate No. 15465, authorizes Walter Miller      to operate as a specialized
motor carrier within the State of Texas:

       “TO TRANSPORT: ANY MATERIAL (OTHER THAN SAND),
       USED IN THE CONSTRUCTION OF A FLEXIBLE BASE FOR
       HIGHWAYS OR RO4DS, in bulk, in dump or hopper vehicles,
       from any pit, railhead, railroad siding, ‘stockpile, crushing
       plant or other source of supply in Texas, to any construction
       jobsite or processing plant in Texas or other place in Texas
       desired by the receiver or shipper of such commodities
       where the distance from the point of origin to the point of
       destination is not greater than three hundred fifty (350) miles;
       requiring the use of special devices, facilities and equipment
       for their loading, unloading and transportation  because of
       their physical characteristics;

        LIME, in bulk, in dump, hopper tanks with auger expulsion
        vehicles, from the location of the White Stone Lime Company.
        near Leander, Texas, to all points in Texas. ”

     In construing a certificate of public convenience and necessity granted a
motor carrier, consideration     should be given to the carrier’s   application to the
Commission and the Commission’s Order.          State v. Bilbo,   392 S. W. 2d 121 (Tex.
Sup. 1965); Dye Trucking Company v. Miller, 397 S. W. 2d 507 (Tex. Civ. App.,
1966, error ref. n. r. e. ). Therefore,    the history of SMC No. 15465 should be
briefly outlined before attempting an answer to your questions.

     As originally granted in 1955, Certificate No. 15465 authorized the intrastate
transportation    of certain specifically enumerated commodities and “any other
material used in the construction of a flexible base for highways or roads. ”
By amendment in 1958 the list of authorized commodities was expanded and the
authority to transport lime was separately and independently set out in the
certificate.    Prior to this amendment,    lime was not mentioned in the list’of
commodities that could be transported under this certificate.


                                        - 2275 -
    1     .




Mr. Norman Manning,      page 3 (M- 458)


    After 1958, the history of Certificate No. 15465 consists of a series of amend-
ments designed to segregate those commodities enumerated in the certificate and
incorporate them in new certificates.     However, that part of Certificate No. 15465
authorizing the transportation  of lime has never been changed.

     Thus, it can be seen that the authority presently contained in Certificate   No.
15465 is merely the residual of what had originally been granted the carrier;      all
of the other authority had been carved out of Certificate No. 15465 to create     new and
separate certificates.

     While lime can be used in the construction of a flexible base for highways or
roads, it appears from reviewing the history of Certificate No. 15465 that neither
the applicant nor the Commission intended that the authority to transport lime be
included in the broad descriptive phrase “any material used in the construction
of a flexible base for highways or roads”.     This intent is clearly evidenced by the
fact that they set out the authority to transport lime separately and independently
from the general authority,    thereby, in effect removing lime from within the scope
of the general authority.   We,therefore,   answer your first question in the negative.
This is in keeping with the rule that orders or permits of the Railroad Commission
are to be construed as statutes and, as in the construction of statutes, the specific
prevails over the general.     Brown, Inc., v. Missouri-Kansas-Texas       Railroad Co.,
256 S. W. 2d 135 (Tex. Civ. App., 1935, error ref., n. r. e. ).

     To reach any other determination   would, in effect, allow new operating
authority to arise without notice and a showing of public convenience and neces-
sity. This could happen for example, when a carrier transfers a commodity
specifically named in his certificate to another carrier,   the latter having never
shown public convenience and necessity,    yet continues to transport that same
commodity under the broad generic language contained in his certificate.

     Your second question asks whether the phrase “to any construction jobsite
or processing plant in Texas” allows the holder of this certificate to transport lime
to the various specific destinations named in your question, apart from the specific
provision relating to lime only. The general authority is inapplicable to the move-
ment of lime and, as stated in our determination     of your first question, lime can
move only under the authority set out in Certificate No. 15465 as it now reads
specifically relating to that commodity. This specific authority authorizes the
transportation   of lime to “all
                             -    points in Texas. ”

     In answer to your thi,rd question, the certifi,cate only authorizes the transpor-
tation of lime from the location of the White Stone LimeCompany         near Leander,
Texas, to all points in Texas.     The transportation    of lime from any other origin is
unauthorized.

                                       - 2276 -
Mr. Norman Manning,         page 4 (M-458)


    The conclusions      expressed in this opinion are limited to Specialized Motor
Carrier Certificate     No. 15465 and constitute only an interpretation   of that certifi-
cate with reference     to the specific inquiries made.

                                     SUMMARY

     1. The authority to transport lime under Certificate No. 15465 is set out
separately and independently from all other authority contained in that certificate
and, therefore,  the substance lime is not included in the general phrase “any
material (other than sand) used in the construction of a flexible base.   .”

    2. Assuming the validity of the grant of authority to transport lime, the
language of the permit authorizes the transportation  of lime to -all points in Texas.

    3. All lime moving under Certificate No. 15465 must originate from the loca-
tion of the White Stone Lime Company nea    eander,Xas,     in Williamson County.




Prepared   by:

James M. Mabry
Assistant Attorney      General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice Chairman

Sarah E. Phillips
Bill Allen
Arthur Sandlin
Bill Corbusier
Thomas Sedberry

W. V. Geppert
Staff Legal Assistant

Hawthorne Phillips
Executive Assistant
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