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GERALD C. MANN AUST,U~ 111. -rExAn

Honorable James E. Kilday, Director Motor Transportation Division, Railroad Commission ofTexas, Austin, Texas Dear Sir: Opinion No. O-1518 Re: Whether a person can hold a certificate of public convenience and necessity, and at the same time hold a special commodity permit. We received your letter ofSeptember 

## 29,1939, requesting our opinion ofthe following question:

“Whether, under the Motor Carrier Laws ofTexas, 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 inpart as follows :“Section 1. Definitions. -- When used inthis act unless expressly stated otherwise:

. . . “(e) The term ‘certificate’ means certificate ofpublic conven.ience and necessity issued under this act. “(f) The term ‘permit’ means the permit issued to contract carriers under the terms ofthis 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, controlling, managing, operating or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway inthis State, where inthe course ofsuch transportation ahighway between two or more incorporated cities, towns or villages is traversed; 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 ofcities or towns.” Section 6(d), as amended in~1937,reads inpart as follows: “The Railroad Commission is hereby given authority to ,issue upon application tothose persons who desire to engage inthe business oftransporting 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, farmmachinery and grain special permits upon such terms, conditions and restrictions as the Ra~ilroad Commission may deem proper,, and tomake rules and regulations governing such operations keeping inmind the protection ofthe iighways and the safety of the traveling public * * *.” We call your attention toSection 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 carrier shall be granted by the Commission toany person operating as a common carrier and holding a certificate ofconvenience and necessity, nor shall any application for certificate ofconvenience and necessity be granted by the Commission toany person operating as a contract carrier nor shall any vehicle be operated by any motor carrier with both apermit and acertificate.,” -. I

Hon. James E. Kilday, Page 3, O-1518

Section b(bb) prohibits acommon carrier from holding a contract 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 apermit and a certificate.” We reach the conclusion that a special commodity permit is a permit as that term is used inSection 6(bb).

On July 16,1931,Hon. T. S. Christopher, Assistant Attorney General, rendered an opinion tothe Railroad Commission of Texas on the following question:

“Please advise whether under your construction of Sections 6dand 6bb ofH. B. No. 335, Acts ofthe Regular Session ofthe Forty-first Legislature (Forty-second Legislature), a person can hold a Common Carrier Certificate or Contract Carrier Permit, and also aSpecial Permit authorizing the transportation ofthe articles named in such Section 6d.” The opinion, inpart, reads as follows: ,“You are advised that under the provisions oftheAct, as referred to, theholder ofa certificate ofconvenience and necessity is notpermitted to hold, inaddition thereto, acontract carrier permit nor a special commodity permit.” We are unable to agree with Mr. Christopher’s contention ~thathis opinion was dicta in so far as itdiscusses the question raised inyour letter. We wish topoint out that the same specific question was. raised inthe 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, tobe exact, July 16, 1931,theAttorney General’s department rendered an opinion tothe effect that a common carrier could not hold a special commodity permit. The Railroad Commission has consistently followed the construction set out by the above opinion. Since the enactment into law ofthe special commod,ity clause in 1931,theRailroad Com,mission has never construed Section 6(d) and b(bb) topermit a common carrier tohold a special commodity permit. The Legislature hasHon. James E. Kilday, Page 4, O-1518

never seen fit to change the verbiage to show a contrary intention. It is reasonable topresume that the correct construction was placed onSections 6(d) and 6(bb).

We might say that we are unable tofind any language inthe 

### Motor Carrier Act which would permit a common carrier tohold a special commodity permit. To the contrary, the evident intention ofthe Legislature was to prohibit a common carrier from operating in another field.

Since the Motor Carrier Act prohibits the operation ofany motor vehicle by any motor carrier with both a permit.and a certificate, it follows, for reasons herein stated, that aholder ofa certificate ofpublic convenience and necessity cannot at the same time hold a special commodity permit. Yours very truly ATTORNEY GENERAL OF TEXAS

Glenn R. Lewis Assistant By Gz2/ 4+-wLee Shoptaw LS-MR

APPROVED NOV 8, 1939

ATTORNEY GENERALOF TEXAS APPROVED OPINION COMMITTEE By B. W. B. Chairman