                                                                                        “.’ 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~




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