Untitled Texas Attorney General Opinion ( 1969 )

Mr. Norman Manning Opinion No. M- 458
County 4ttorney
Williamson County Re: Specialized Motor Carrier
Georgetown, Texas Certificate No. 15465;
Interpretation of Certificate
with Respect to the Trans-
portation of Lime
Dear Mr. Manning:
You have requested an opinion of this office as to the following:
1. Does the term “any material”, as it is used in the first
line of Specialized Motor Carrier Certificate No. 15465,
include lime?
2. Does the phrase “to any construction jobsite or processing
plant in Texas”, as it is used in Specialized Motor Carrier
Certificate No. 15465, allow the holder of this certificate
to transport lime to:
(a) any oil and gas refining company in Texas;
(b) the Union Carbide processing plant located
near Houston, Texas;
(c) any steel processing plant;
(d) any and all cities in Texas for the treatment of
water processed by the cities for public consumption;
(e) any processing plant where lime is used for acid
purification; or
(f) any processing plant?
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Mr. Norman Manning, page 2 (M- 458)
3. Does Specialized Motor Carrier Certificate No. 15465
allow the carrier to haul lime from points of origin
other than Williamson County to any “processing plant
in Texas or other place in Texas desired by the receiver
or shipper of such commodity” when the carrier passes
through Williamson County?
The certificate to which your inquiry relates, Specialized Motor Carrier
Certificate No. 15465, authorizes Walter Miller to operate as a specialized
motor carrier within the State of Texas:
“TO TRANSPORT: ANY MATERIAL (OTHER THAN SAND),
USED IN THE CONSTRUCTION OF A FLEXIBLE BASE FOR
HIGHWAYS OR RO4DS, in bulk, in dump or hopper vehicles,
from any pit, railhead, railroad siding, ‘stockpile, crushing
plant or other source of supply in Texas, to any construction
jobsite or processing plant in Texas or other place in Texas
desired by the receiver or shipper of such commodities
where the distance from the point of origin to the point of
destination is not greater than three hundred fifty (350) miles;
requiring the use of special devices, facilities and equipment
for their loading, unloading and transportation because of
their physical characteristics;
LIME, in bulk, in dump, hopper tanks with auger expulsion
vehicles, from the location of the White Stone Lime Company.
near Leander, Texas, to all points in Texas. ”
In construing a certificate of public convenience and necessity granted a
motor carrier, consideration should be given to the carrier’s application to the
Commission and the Commission’s Order. State v. Bilbo, 392 S.W.2d 121 (Tex.
Sup. 1965); Dye Trucking Company v. Miller, 397 S.W.2d 507 (Tex. Civ. App.,
1966, error ref. n. r. e. ). Therefore, the history of SMC No. 15465 should be
briefly outlined before attempting an answer to your questions.
As originally granted in 1955, Certificate No. 15465 authorized the intrastate
transportation of certain specifically enumerated commodities and “any other
material used in the construction of a flexible base for highways or roads. ”
By amendment in 1958 the list of authorized commodities was expanded and the
authority to transport lime was separately and independently set out in the
certificate. Prior to this amendment, lime was not mentioned in the list’of
commodities that could be transported under this certificate.
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1 .
Mr. Norman Manning, page 3 (M- 458)
After 1958, the history of Certificate No. 15465 consists of a series of amend-
ments designed to segregate those commodities enumerated in the certificate and
incorporate them in new certificates. However, that part of Certificate No. 15465
authorizing the transportation of lime has never been changed.
Thus, it can be seen that the authority presently contained in Certificate No.
15465 is merely the residual of what had originally been granted the carrier; all
of the other authority had been carved out of Certificate No. 15465 to create new and
separate certificates.
While lime can be used in the construction of a flexible base for highways or
roads, it appears from reviewing the history of Certificate No. 15465 that neither
the applicant nor the Commission intended that the authority to transport lime be
included in the broad descriptive phrase “any material used in the construction
of a flexible base for highways or roads”. This intent is clearly evidenced by the
fact that they set out the authority to transport lime separately and independently
from the general authority, thereby, in effect removing lime from within the scope
of the general authority. We,therefore, answer your first question in the negative.
This is in keeping with the rule that orders or permits of the Railroad Commission
are to be construed as statutes and, as in the construction of statutes, the specific
prevails over the general. Brown, Inc., v. Missouri-Kansas-Texas Railroad Co.,
256 S.W.2d 135 (Tex. Civ. App., 1935, error ref., n. r. e. ).
To reach any other determination would, in effect, allow new operating
authority to arise without notice and a showing of public convenience and neces-
sity. This could happen for example, when a carrier transfers a commodity
specifically named in his certificate to another carrier, the latter having never
shown public convenience and necessity, yet continues to transport that same
commodity under the broad generic language contained in his certificate.
Your second question asks whether the phrase “to any construction jobsite
or processing plant in Texas” allows the holder of this certificate to transport lime
to the various specific destinations named in your question, apart from the specific
provision relating to lime only. The general authority is inapplicable to the move-
ment of lime and, as stated in our determination of your first question, lime can
move only under the authority set out in Certificate No. 15465 as it now reads
specifically relating to that commodity. This specific authority authorizes the
transportation of lime to “all
- points in Texas. ”
In answer to your thi,rd question, the certifi,cate only authorizes the transpor-
tation of lime from the location of the White Stone LimeCompany near Leander,
Texas, to all points in Texas. The transportation of lime from any other origin is
unauthorized.
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Mr. Norman Manning, page 4 (M-458)
The conclusions expressed in this opinion are limited to Specialized Motor
Carrier Certificate No. 15465 and constitute only an interpretation of that certifi-
cate with reference to the specific inquiries made.
SUMMARY
1. The authority to transport lime under Certificate No. 15465 is set out
separately and independently from all other authority contained in that certificate
and, therefore, the substance lime is not included in the general phrase “any
material (other than sand) used in the construction of a flexible base. .”
2. Assuming the validity of the grant of authority to transport lime, the
language of the permit authorizes the transportation of lime to -all points in Texas.
3. All lime moving under Certificate No. 15465 must originate from the loca-
tion of the White Stone Lime Company nea eander,Xas, in Williamson County.
Prepared by:
James M. Mabry
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice Chairman
Sarah E. Phillips
Bill Allen
Arthur Sandlin
Bill Corbusier
Thomas Sedberry
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
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