Mr.     Horace           Soule                                                        Opinion         No.      C-355
Railroad          Commission               of Texas
Motor        Transportation               Section                                     Re:       Whether          the Motor             Trans-
Aus tin,         Texas                                                                          portation           Division           of the
                                                                                                Railroad            Commission             of
                                                                                                Texas         has     jurisdiction          to
                                                                                                regulate          the    transportation
Dear       Mr.     SOL&:                                                                        of dead         human         bodies.


You       recently          requested          an opinion             of this     office        on the following                 questions:


          “Does      the      Railroad         Commission                 of Texas,          Motor           Transportation
        Division,           have       the jurisdiction               to regulate            the     transportation               of
        dead       [human]            bodies      ?


          “Are     dead       [human]            bodies        to be considered                 as     ‘property           or’com-
        modities’           within       the     language          of the Motor              Carrier           Statutes,
        Article          911b, V.A.C.S.?”


The     above        set     out questions              proposed             by you      are       directly         related       and,
therefore,           will     be discussed               together,


Article          911b, Vernon’s            Civil        Statutes,          commonly             referred            to as the Motor
Carrier          Act,       provides       for        regulation          by the Railroad                  Commission               of Texas
of segments              of the motor             carrier          industry.            Section        2 of said           Act    provides:


                                         “No      motor        carrier,          as     defined        in the
                                     preceding          section,         shall        operate        any      motor-
                                     propelled          vehicle        for    the     purpose          of trans-
                                     portation         or    carriage           of property            for     com-
                                     pensation          or hire        over      any     public        highway
                                     in the State           except       in accordance                with      the
                                     provisions             of this    Act       . . , .‘I


It is     thus     seen       that     if the activities               of a carrier             cause         it to fall      within      the
definitions             of regulated           carriers           as set        out in Article                911b, the       Railroad
Commission                 has   jurisdiction               to regulate           the    transportation                 involved.          There


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IMr.   Horace         Soule,       page          2 (C-355)




are’ two     (2)     general           categories              of regulated                   traffic        in which             it might           be
contended           that    the   transportation                         of dead          bodies        would         be included.                   These
categories          are      “Motor             Carrier”            as defined                in Section             l(g)     of the Act               and
“Specialized           Motor           Carrier”            as defined                  in Section            l(i)     of the         Act.
       I
Section      l(g)     of Article           911b defines                   a motor             carrier         in the          following
language:


                                         “(g)       The        term          ‘motor           carrier’              means         any
                                  person,           firm,           corporation,                 company,              co-partnership,
                                  association                 or     joint        stock        association,                 and      their
                                  lessees,           receivers                   or     trustees,           appointed             by any
                                  court          whatsoever                 owning,             controlling,                managing,
                                  operating              or     causing               to be operated                 any      motor           pro-
                                  pelled          vehicle           used         in transporting                    property            for
                                  compensation                      or     hire        over      any       public       highway               in
                                  the State           . . . .‘I (Emphasis                           added)


Section      l(i)    of the Act            defines            a specialized                   motor          carrier           in the         following
language:

                                         “(i)      ‘Specialized                  motor          carrier’             means           any
                                  person           owning,               controlling,               managing,                operating
                                  or     causing           to be operated,                       any       motor        propelled
                                  vehicle           used        in transporting                      over       any         public      high-
                                  way       in this           state        over          irregular           routes           on irregular
                                  schedules,               for       compensation                     and for          the     general
                                  public          with        specialized                 equipment,                property            re-
                                  quiring           specialized                   equipment              in the        transportation
                                  and handling                  thereof               . . . .

                                  II
                                       . . . .

                                          “For       the purpose                      of this       Act,      the     term           ‘property
                                  requiring              specialized                    equipment’             is     limited           to (1) oil
                                  field         equipment,                 (2)    household                goods       and      used          office
                                  furniture              and        equipment,                (3)    pipe      used          in the         con-
                                   struction             of water                lines        and    Pipelines,              anh ‘(P’) com-
                                   modities              which            by reason              of length,           width,          weight,
                                   height,          size,           or    other          physical           characteristics
                                   require           the       use        of special             devices,            facilities,              or
                                   equipment                  for     their           loading,          unloading,             and      trans-
                                   portation.”                 (Emphasis                  added)


 As    has     been        previously             stated,           if the        Railroad              Commission                   of Texas             has
 jurisdiction              over    the     transportation                        over      the      public          highways            of the State
                                                                         -1680-
Mr.      Horace             Soule,        page        3 (C-355)




of Texas             of dead            bodies,         it must           be because                 said        carrier            doing         said      trans-
portation            falls        within        the definition                  of either            “motor             carrier”             or      “special-
ized     motor            carrier.”               The        fundamental                question             to be determined                         in this
regard            is whether              or    not     dead           human        bodies,           or     corpses,               as they           are
commonly                 called,         are      classified              as     “property”                 or     “commodities”                      as
those        terms           are        used     in the        above           quoted       definitions.                     For       the purpose                   of
this     opinion,            it will       be assumed                    that     the     other        requisites                   of the        definitions
have      been          fulfilled.             In other           words,         it is      assumed                for       the purpose                  of this
opinion           that      the     transportation                     of the      dead        bodies            is    a for        hire         movement
by a common                   carrier            over        the       public      highways                 in Texas,               and during               said
movement                 a highway              between            two     or     more          incorporated                    municipalities                       is
traversed.                 Although             there        may         be some           difference~of                     opinion             as to
whether            or     not      specialized               equipment,                as that         term            is    used       in the statute,
is     required            for      such       movement,                 for     the      purposes                of this          opinion          it is
irrelevant.                  This        opinion        is    related            solely        to the            determination                    of w:.ether
or     not    dead         human           bodies        are           “property”              or    “commodities”                          as    contem-
plated         by Article                911b.


The      Act       itself         is,    of course,            silent           on this        point,            and     there         is    no expressed
intention            of the         legislature              as        to whether           dead        human               bodies          should          fall
within         the      regulation              contemplated                    by the      Act.            In addition,               apparently,
there        is    no Texas              case      law        directly           in point.             Examination                     of various
authorities               reveals          that       Texas            courts       have        previously                   been       presented                  with
somewhat                related          questions             with        regard          to property                   rights        in human
remains.                No       Texas         case      has       been         found      which            states           that     dead         human
bodies         are       property.                The        courts        have         held        that     the heirs                and        survivors
have      an interest                   in the deceased,                   entitling            them         to bury           the      body         or     pre-
serve        the        remains,            such        interest           being         termed             by the           courts          as a “quasi
property             right.”             Gray      v. State,             114 S.W.          635,        (Tex.           Crim.          1908);         Barnett
v. Surratt,              67 S.W.2d               1041, (Tex.              Civ.      App.        1934,        error            ref.)              In the
Barnett            case,         supra,         on page            1042 appears                 the        following            language:


                                                “There            is    no property                 right        in a dead             man’s
                                         body,        in the usually                recognized                    sense         of the word,
                                         yet     it may           be considered                     as a sort               of quasi         pro-
                                         perty,         in which           certain          persons               have        rights             therein,
                                         and have             duties        to perform.”


There          have         been        found      no cases               from       other          jurisdictions                   directly              bearing
on the questions                        presented             in this          opinion.             However,                without          a lengthy
recitation               of citations,             it may              be said       that       other        jurisdictions                       follow        the
general            reasoning              advanced             in Gray            and      Barnett,               supra.            See      Lawson                v.
State,        24 S.E.Zd                 326 (Ga.        App.           1943);      Lubin            v. Sydenham                 Hospital,                 42

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Mr.      Horace       Soule,         page       4 (C-355)




N.Y.2d       654     (N.Y.       Sup.       1943);           Litteral           v.    Litteral,            111 S.W.           872        (MO.        App.
1908).


In the      case     of In re            Wong      Yung           Ouy,         2 F.      624        (Calif.         C.C.A.           1880)       the
court      was     called        upon       to consider                   the constitutionality                           of a California
statute      making          it an offense                  to remove                 from         the     place          of burial           the
remains          of any      deceased             person                without         a permit,              for     which          permit           a
fee     of $10.00      was       required.                  It was         contended               that       the     statute         violated
Article       1, Section            2, § 3 of the                 United         States        Constitution,                  which             provides
that      Congress          shall        have      the power                   to regulate               commerce                 with      foreign
nations.       The court             held the statute                          to be constitutional,                        and      in so doing,
made       the following             statement:


                                          “Besides,                the     remains             of deceased                  persons
                                  are       not    ‘exports’               within           the meaning                   of the      term
                                    as    used         in the           Constitution.                 The      term          refers           only
                                    to those           things           which         are     property.                   There       is      no
                                    property            in    any        just        sense         in the      dead         body         of a
                                    human         being;”


Of course,           the     above        stated            authority            is    not directly                  in point         to the         pro-
blem       presented          herein,           but it is               at least        persuasive                  for     the proposition
that      dead     human         bodies         are         not     property            for        the     purpose            of transportation
regulation          under        Article          911b.           If,     as    stated        in In re              Wong          Yung        Ouy,         dead
human        bodies        are      not property                   for     the purpose                   of classification                      as   exports
in the      regulation           of foreign                 commerce,                 it would            seem         to follow              that     they
are      not property            in the sense                  of classification                      as      set     out by Article                   911b.


In 25 C.J.S.           1016-1017           is found               the following               language:


                                          “The         authorities                are        almost           uniform             in hold-
                                    ing    that        there        is     no right           of property,                  in the         strict
                                    sense         or    in the           ordinary             use        of the       term,          in the
                                    dead        body         of a human                being,         and      after         burial         the
                                    body        becomes                 part     and     parcel            of the          ground          to
                                    which         it is       committed.                    The       right,         however,              to
                                    bury        a corpse,                and     to preserve                  the     remains              . . .
                                    is a legal              right        which         the     courts           recognize                and
                                    protect            as    a quasi            property             right;          and     this,       in
                                    the     absence               of a statute,               is    the       only        right      one
                                    may      have           in a dead             body.”


Finally,         it should          be noted            that        the Interstate                   Commerce                 Commission                    has
concluded           that     the Interstate                   Commerce                  Act        was        not     intended             to confer

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.   .


        Mr.     Horace            Soule,      page         5 (C-355)




        jurisdiction              upon     the      I.C.C.         to regulate               the     operation                of carriers                trans-
        porting           corpses         in interstate              or        foreign        commerce.                   Dennis              Common
        Carrier           Application              (1954),         63 M.C.C.               66.      In this        decision              is    found         the
        following           language:


                                                    “Contrary                  to the       conclusions                in Steffen
                                            Common                Carrier            Application,                34 M.C.C.               779,
                                            decided           September                  1, 1942,         we     conclude              that        a
                                            corpse           is    neither           property             nor     personalty                  as
                                            affects          the jurisdictional                      scope         of the Interstate
                                            Commerce                 Act.            The     only     characteristic                     of a
                                            corpse           which         resembles                the        cumulation              of legal
                                            rights          that    constitute               propert;-           is     :!I?     zi:h:        sf
                                            burial          I . . .


                                                    “To      qualify           the    remains             of a deceased                   person
                                            as      ‘property’             the       transportation                   of which           by motor
                                            carrier           requires               authority            from         this      Commission
                                            would          in our         opinion           require            specific          language               in
                                            the Interstate                 Commerce                  Act.         The          iegislative
                                            history          of the Act               contains            no indication                  of any
                                            intent         to include             such       remains             within          the juris-
                                            diction          conferred.”


        Although            it is    readily          apparent            that       none        of the authorities                      cited          above        is
        directly           in point        on this         question,             and       although            it is    realized              that        a decision
        made         by the Interstate                    Commerce                Ccmmission                    of the         United          States        is     not
        binding           on the      Railroad            Commission                    of Texas,              it is    the       opinion              of this      office
        that    these           authorities           do present                the preferred                  view       that      a dead             human         body
        is    not    “property”             as that          term         is    used        in Article             911b.         We      therefore                con-
        clude        that       the word           “property”,             as that           term         is    used      in Article                   911b, does
        not    include           dead      human          bodies,          or     corpses            as     they       are       commonly                  called.


        There        have         been     found          no authorities                   bearing          directly            upon      the question                    of
        whether            or    not dead          human           bodies         are       to be considered                      as     “commodities.”
        Webster’s                Third     New        International                  Dictionary         defines                 “commodity”                   as
        used        or    valued,         especially              when         regarded            as an articl.e                 -f commerce;                      as a
        product    of agriculture,    mining    or sometimes      manufacture      as distinguished
        from   services,      A Federal    Court   has defined    a “commodity”       a.s an article
        of trade   or commerce,       a movraole     a,rtlii.e cf trade.  sornr;.nin~    \\-hich is
        bought           and     so,id.     United          States        vs.        Shi,sko,        262 F.           1001 (Wash.                  D.C.      1919).


        In     the       Texas      case      of Pound             vs.     Lawrence,                 Jr.,       233 S.W.            359 (Tex.                Civ.
        App.        1921, error            ref.)      the     court        made            then following               statement:
                                                                               -:683-
Mr.     Horace      Soule,       page      6 (C-355)




                                    “The       word         ‘commodity’             is    a broader          term
                                than    merchandise,                and      in referring            to commerce
                                it may     mean         almost        any      article       of moveable              or
                                personal        property.”


In Nasman          vs.    Bank      of New          York,      49 N.Y.S.Zd               181 (N.Y.        Sup.    1944)    the
court     pointed        out that      the word          “commodity”                has     been      held       to include
every     moveable          thing      that    is    bought         and sold,        except         possibly        animals.


It is   the   opinion        of this     office        that    the word          “commodity”,                 as it is     com-
monly      used,     would       not    include         dead       human        bodies       or     corpses.


                                                            SUMMARY


              1.    The      Railroad          Commission              of Texas,           Motor          Transpor-
              tation      Division,           does     not have            the jurisdiction            to regulate
              the    transportation                 of dead       human        bodies.


              2.    Dead        human         bodies        are     not to be considered                   as     “pro-
              perty”       or    “commodities”                    within      the   language          of the Motor
              Carrier         Statute,        Article         911b, Vernon’s               Civil     Statutes.


                                                                                Very        truly     yours,


                                                                                WAGGONER                  CAR R
                                                                                Attorney            General



                                                                                By&@+       Sam      L.    Kelley
                                                                                            Assistant


SLK:sss


APPROVED:
OPINION          COMMITTEE

W. V. Geppert,             Chairman
John Reeves
Bob     ?‘lowers
Malcolm          Quick
Grady      Chandler

APPROVEDFOR                     THEATTORNEYGENERAL
By:     Stanton      Stone
                                                            -1684-
