Untitled Texas Attorney General Opinion ( 1964 )

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
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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:
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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
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