   -        -




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
