AUSTIN la. TEXAS

PRICE DANIEL
ATmrnFJzY ca~Nmz”A~ April 13, 1948

Ron. C. E. Balk, Administrator Board of Plumbing Braminers 306 West 15th ,Street Austin, Texas opinion Ho. v-541

Re: Applicabilityof the Plumbing L.l.cense,Lav of 1947 to butane or propane dealers vho Install piping used exclusivelyfor llquefled petroleumgas purposes.

~DearSir:,

Referenoe is made to Tour request for an opinion on the above captioned subject,and ve quote from hour letter, in part, as follovs:

"1. Ave butane or prop6ne dealers who installpiping vhich is used exclusively for butane and propanepurposes, regardless of vhether~thehouse so plped Is Inside or outside of cities OS five thousand or more population, the provisions of S.' B. 1881 I

ubjeat to ing License Lav of 1947) The Plumb-~

'2. Are .butane

and propane dealers who Install appliances for use on **butane** and pro e subject to the provisions of 9. B. 1 r8 vhen such Installation requires that said dealers or theLr employees find It necessary to run additionalgas and water lines in order to make such appliancea functionproperly?

"3. If your titerpretatlon excludes butane and propane dealers In Texas from the provisions of this Act, would such excluded dealers be subject to any local ordinanceswhich cities In Texas may pass InEon. C. 6. Belk, page 2 (V-541)

an attempt to bring such butane and propane dealers under the provlelone of their local plumbing ordinances,or vould the provlalone of 8. ordlnancea?~

B. 188 prevail over such local

As you have noted In your request, the Railroad Co~selon Is given a general regulationand llaenelng authority over liquefiedpetroleum gas dealers Snd operatorswho install liquefiedpetroleum gas etorage and dispensing systems and plplng. The authority o? 'the Railroad Commlsslonto license such activities 1s~ cixitalned

In Acts 1945 49th Le pige 629, codlrled in #ernon(s 8 9. B. 269, ch. 358, i6$1 Statutes as Artiale 6053 from which we quote the pertinent excerpts:

'Sea, 7. (1) No person, firm or corporation shall enga e In this state ln the manufaoturlng,

and or aesembll B repairing,and/or selling,and or install7, -d/or ing of containersto be used with llquefled petroleumgases aa a fuel, nor shall such person, firm, or corporationengage In the sale, traneportatlon,~dlspensing or storage o? liquefiedpetroleum gases within this state, except where stored by the ultimate consumer for consumptiononly, without having fipet obtained from the Railroad Commission of Texas under the provisions of this Act 4 license so to do. Applications for such licensee shall be In writing and shall contain such~lnformatlon as the Conmlseion shall preecrlbe. No such license shallbe Issued until a hearing is had thereon and~the Commissionhas determined that the applicanthas made good and eufficientproof that he can and will meet all safety requirementsprovided in this Act and by the rules and regulationsof the Railroad Commission,and the Con&salon finds that such applicant Is qualified and the evidenceadduced justifies Issuance of such license. The Railroad Commission shall have the authority to promulgaterules and regulationsfo$ the safety and protection of the public.

"sec. 8, Provided further, that the Coamlssionshall have the authority toEon. C. E. Belk, page 3 (V-541)

require every person, firm or corpopation who makes lnetallatloneor repairs of containers,equipment,4nd/or appllancee, or rirme, persona or aorporatlons using inetallatlon men, se-ice men, and repair men, to have at least one person in their regular employ or organlaatlon vho shall prove through an examination given by the Railroad Comslsslonthat he has a thorough knowledgeand underetandlng of the containers,appliancesa4d equipment they Intend to install;and providing further that he is aompetentsad qualified to properly Install, sertiae and/or repair such contalnere,sppllancee and equipment; such examlnatlanto be bssed upon recognized standard aodes and practicesas promulgatedby the Railroad Comuleslon.Persons, firms, aorporatlone
or aseoclatlonswho handle appliancesexclusivelyfor use with natural gae;and who do not offer their appliancesfor sale or use with liquefiedpetroleum gases, are exempted from the $rovislons of this Act,"

Additionalprovisions of Art. 6053 require a surety bond In favor of the State of Texas, and policies of insurance to protect those who may be injured by any act of negll'4 ence on the part of liquefiedpetroleum gas dealers. t also contains sectionsproviding for procedures for hearings In connectlon'wlthcomplaints against licenses. Provlsior~ for payment of a fee for the license reqniredby Section 7 of-the Aat 1s also mnde.

The Plumbing Ucense tiw of 1947, to which you refer, Is codified as Article 6243-101,V. C. 9. It PBqulree a license of plumbers and in Section 2 defines plumbing as follows:

"Sec. 2 (a) The word or term lplruablngl

as used in this Act mans and shall lnalude'. (1) All piping, fixtures, appurtenances and appliancesfor
a supply of water or gas, or both, for Sll personal or domestic purposes in and abmtbuildinge where a person or persons live, vork or assemble;all piping, flx-Hon. 0. E. Belk, page 4 (v-541)

turea, appuvtenanaes sad appliancesoutside a bulldlng aonueatfngthe building vlth the source of vater or gas supply,
or both, on the premleee, or the main in the street, alley or at the curb; all plplng, fixtures,appurtenances, appliances, drain or waste pipes carryingwaste water
or sewage from or within a bnildlng to the
sever servlae lateral at the curb or In the street or alley or other disposal ter minal holding private or domestic sewage; (2) the installation, repair and malntenance of all piping, fixtures,appurtenances and appliances In and about bulldings vhere a person or persons live, vork

or assemble, for a supply of gas, water,
or both, or disposal of waste water or sewage e

We vi11 first consider the question of vhether those engaged solely in the liquefiedpetroleum gas business vlthln the terms of Article 6053 are also subject to the requirementsof the PlumbingLicense hw of 1947.

By Article 6053, the Legislaturebas set up elaborateregulatoryprovisionsapplicableto the llquefled petroleum industry Including thetldelegation of authority to the Railroad Commission to promulgate rules and r$gulatlonefor the safety and protection of the public. It further authorized the Commissionto require all vho make, or employ others to make, lnstallatlone or repairs of containers,equipmentand/or appllantes, to have at least one person in their employ or organization

who shall prove through examinationthat he baa all of the knowledge, competencyand qualifications necessary to do the work, the examinationto be based upon recognized standard codes and practicesas promulgated by the Commlsslon.

Such requirements,and those the CommlsslonIs authorized to make thereunder,are designed to accomplish the identicalends insofar as the lnstallatlon, etc. of liquefiedpetroleumgas facilitiesas the 'Plumbers License Lav Is designed to accomplishas to plUmalng installationf5

enerally, includinggas fixture installation. The lquefled PetroleumGases Law goes further than to provide measures to assure comrmtenc& and authorizes the regulation of manufactureand installa-Eon. C. E. Belk, page 5 (V-541)

tlon of all equipmentdesigned for the utlllzstionof liquefiedpetroleumgases.

Are ve, therefore,to construe the Plumber’s License Law as a modificationof the Liquefied Petroleum Gases Iaw In requlrlng an additionalor duplicate exaainationinto the competencyof those engaged solely In the business contemplated by Article 6053, and lncldentally require them to qualify to engage ln plumbing actlvltleehaving no relation whatever to the lnetallatlon, repalr and servicing of liquefiedpetlioleuia gas facllltles? Such an Interpretationcan arise based solely on a strictly literal interpretation of its lanBuage l
It Is true that one holding a general license having as Its purpose the accomplishmentof leglelatlve ends dlffepent from those of a more specificlicense to do things Included In the general license may be required to obtain the specific license. It my also be true that one holding such a specific license my be requlred to obtain the general license. But vhen the specific license requirementIs designed to accomplishall of the ends of the general license requirementa.nd mope too, then ve believe that the latent of the Legislatureis fulfilledby meeting the requirementsof the specific license by one engaged goleu In the endeavor or oaoupatlon contemplated by the latter.

This principlehas been recognized In the constructionof tax and license statutesand opdlnances In sitnations

believed to be anarlogoue to the present considerations. In the case of Terse Companyv. Stephens, 103 5.W. 481, by the Supreme Conzlt of Texas, the court said:

“The 8ame person or corporation may carry on severaldifferentbusinesses,and, of course,may be taxed in respect of each, but, vhen the Legislaturehas defined and taxed one business, It Is not to be aseumed that it has Intended to again tax the
same business uuder another name, nor Is It to be assumed that It has~fntendedto tax, as a distinctbusiness, that vhlch la
a mere Incident of another business vhlch has been defined and taxed as a whole.*

Ye are of the opinion that those vho do noHon. C. B. Belk, page 6 (V-541)

plu+ng work-

other-th+n t+t a~d lnaldentsllyto the business regulatedby Article 6053 are not subject to the PlumbersUcenee Law.

The Plumbing License Law containsprovisions

. whiah we believe support the construction which we 'have placed thereon in the light of the &pefled Petroleum Oases Law and other enactments.

Section 15 of such lav provides:

"Every city in this State of more than five thousand (5,000) lnhabltanta shall,and any city or town of this State nuxy, by ordinance or by law, prescribe rules and regulations for the aterlals, construction,

alterationand Inspection of all pipes, fauce.t&, tanks, valves, and other fixturesby and throughwhich a supply of eater, gas or sevage is used or carried;and provided that they shall not be placed In any bulldlng therein exaept in accgrdanoewith such rules and regulations.

The above Section la in direct conflictwith Sections 3 to 6 of Article 6053 authorizingthe Railroad Com@sslon to presaribe rules and'r&@atlons covering the same eubject~

matter Insofar as the utilizationof liquefiedpetroleum gases 1s concerned. An attempt to blend these enactments Into a system of concurrent4nd simultaneousjurisdictionover the llquefled~petroleum Industry la obviously Impractical. Ro such result could, In reason, havebeen contemplated by the Legislature.
Repeals by lmpllcation~are not favored. Here
a specific lav deals vlth licensing liquefiedpetroleum gas handlers and a later general law is silent on this particulartype of workman. Both laws must be harmonieed and upheld If possible. The later law will not be held to lmplledlyrepeal the former. Uquefled petroleum gases being highly explosive,require special handling and ihe Legislaturehas made specialprovision for Its handling thPough.theRailroad Commission, and not by regulationthrough the State Board of PlumbingExaminers.

Your first two question are, therefore,answered In the negative.BOIL C. E. Belk, page 7 (v-541)

As to your third question,hating concluded that liquefiedpetroleum gas enterprlsedare not eubject to the Plumbing License Law, we,belleve that the extent to vhich munlclpalltles might regulate them Is not affectedby anfof the provisions thereof. We aannot state aategorlcallythat local city plumbing ordinanaee would not apply to them in any particular. However, since the Legislaturehas seen fit to under the regulationand supervisionof t&e Ii laae them allroad Commission,to that extent Railroad Commlsslonregulation would be flxcluslve. 43 C. J. 422, The general+e Is stated in

Munlclpal Corporatlone
, Section 553:

“The power to regulate public utllltlee~maybe and oftehtlmes la, delegated by the State to boards or cosnnlsslons. Then the question arises whether the pover of euah body is exclusive or concurrent with that of the municipal corporation. If the ptier conferredon the board or commission

may be exercisedwithout being interferedwith by the regulation of the munlclpal corporation,the power may be exercised concurrentlyto the extent that the mtmlalpalregulationdoes not conflict vlth the exerolse of the power aonferred upon the state board or~aoam&sslon. Following the general rule, municipal regulations dealing with public utllltles cannot conflictvlth statutory enactmentson the subject. Ordinarilypower conferred
on public serviceboards or comnlsslons
over publla utllltles exaludes the cqporatlon from acting In the premises.

This rule would also apply where activities, other than those of “publicutilities”,are under statutory authority,regulatedby a State board or commlsslon.

SUMMARY

Liquefiedpetroleum gas enterprises regulatedunder Article 6053, V. C. S.,
are not subject to the provisiona of Article 6243-101,V. C, S., the PlumbingLitense Lav of 1947. Municlpalltles may not regulate such liquefiedpetroleum gas con-Ron. C. IL Belk, page 8 (V-541)

aerna in 4 manner lnaonalatentxith Arti- ,I 1 ale, 6053,'V. 0. 

### a., az@ the regulation8 thereofby the Railroad Coml&an.

TotAre VtRy tFUly,



### c&c&)+&

ha bDanie1 ,. Assistant '