Untitled Texas Attorney General Opinion ( 1948 )

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: Applicability of the
Plumbing L.l.cense,Lav
of 1947 to butane or
propane dealers vho
Install piping used
exclusively for llque-
fled petroleum gas
purposes.
~Dear Sir:,
Referenoe is made to Tour request for an opin-
ion on the above captioned subject, and ve quote from
hour letter, in part, as follovs:
"1. Ave butane or prop6ne dealers
who install piping vhich is used exclu-
sively for butane and propane purposes,
regardless of vhether~the house so plped
Is Inside or outside of cities OS five
thousand or more population, ubjeat to
the provisions of S.'B. 1881 IThe Plumb-~
ing License Lav of 1947)
'2. Are .butaneand propane dealers
who Install appliances for use on butane
and pro e subject to the provisions of
9. B. 1r 8 vhen such Installationrequires
that said dealers or theLr employees find
It necessary to run additional gas and
water lines in order to make such appli-
ancea function properly?
"3. If your titerpretatlonexcludes
butane and propane dealers In Texas from
the provisions of this Act, would such ex-
cluded dealers be subject to any local or-
dinances which cities In Texas may pass In
Eon. 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 provl-
alone of 8. B. 188 prevail over such local
ordlnancea?~
As you have noted In your request, the Rail-
road Co~selon Is given a general regulation and ll-
aenelng authority over liquefied petroleum gas dealers
Snd operators who install liquefied petroleum gas etor-
age and dispensing systems and plplng. The authority o?
'theRailroad Commlsslon to license such activities 1s~
cixitalnedIn Acts 1945 49th Le 9. B. 269, ch. 358,
pige 629, codlrled in #ernon(s 8i6$1 Statutes as Arti-
ale 6053 from which we quote the pertinent excerpts:
'Sea, 7. (1) No person, firm or cor-
poration shall enga e In this state ln the
manufaoturlng,andBor aesembll7, -d/or
repairing, and/or selling, and or install-
ing of containers to be used with llquefl-
ed petroleum gases aa a fuel, nor shall
such person, firm, or corporationengage
In the sale, traneportatlon,~dlspensing or
storage o? liquefied petroleum gases within
this state, except where stored by the ulti-
mate consumer for consumptiononly, without
having fipet obtained from the Railroad Com-
mission of Texas under the provisions of
this Act 4 license so to do. Applications
for such licensee shall be In writing and
shall contain such~lnformatlonas the Con-
mlseion shall preecrlbe. No such license
shall be Issued until a hearing is had
thereon and~the Commission has determined
that the applicant has made good and euf-
ficient proof that he can and will meet all
safety requirementsprovided in this Act
and by the rules and regulations of the
Railroad Commission,and the Con&salon
finds that such applicant Is qualified and
the evidence adduced justifies Issuance of
such license. The Railroad Commission shall
have the authority to promulgate rules and
regulations fo$ the safety and protection
of the public.
"sec. 8, Provided further, that the
Coamlssion shall have the authority to
Eon. C. E. Belk, page 3 (V-541)
require every person, firm or corpopa-
tion who makes lnetallatloneor repairs
of containers,equipment, 4nd/or appll-
ancee, or rirme, persona or aorporatlons
using inetallatlonmen, 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 Comslsslon that he
has a thorough knowledge and underetand-
lng of the containers,appliances a4d
equipment they Intend to install; and pro-
viding further that he is aompetent sad
qualified to properly Install, sertiae
and/or repair such contalnere,sppllancee
and equipment; such examlnatlan to be bss-
ed upon recognized standard aodes and
practices as promulgatedby the Railroad
Comuleslon.Persons, firms, aorporatlone
or aseoclatlonswho handle appliances ex-
clusively for use with natural gae;and
who do not offer their appliances for
sale or use with liquefied petroleum
gases, are exempted from the $rovislons
of this Act,"
Additional provisions of Art. 6053 require a
surety bond In favor of the State of Texas, and poli-
cies of insurance to protect those who may be injured
by any act of negll ence on the part of liquefied petro-
leum gas dealers. '4t also contains sections providing
for procedures for hearings In connectlon'wlthcom-
plaints against licenses. Provlsior~for payment of a
fee for the license reqnired by 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 PB-
qulree a license of plumbers and in Section 2 defines
plumbing as follows:
"Sec. 2 (a) The word or term
lplruablnglas used in this Act mans
and shall lnalude'.(1) All piping, fix-
tures, appurtenancesand appliances for
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, appuvtenanaessad appliances out-
side a bulldlng aonueatfng the 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 plp-
lng, fixtures, appurtenances,appliances,
drain or waste pipes carrying waste 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 malnte-
nance of all piping, fixtures, appurte-
nances and appliances In and about bulld-
ings 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 vheth-
er those engaged solely in the liquefied petroleum gas
business vlthln the terms of Article 6053 are also sub-
ject to the requirements of the Plumbing License hw of
1947.
By Article 6053, the Legislaturebas set up
elaborate regulatory provisions applicable to the llque-
fled petroleum industry Including thetldelegationof
authority to the Railroad Commission to promulgate
rules and r$gulatlone for the safety and protection of
the public. It further authorized the Commission to
require all vho make, or employ others to make, lnstall-
atlone or repairs of containers,equipment and/or appll-
antes, to have at least one person in their employ or
organizationwho shall prove through examination that he
baa all of the knowledge, competencyand qualifications
necessary to do the work, the examinationto be based
upon recognized standard codes and practices as promul-
gated by the Commlsslon.
Such requirements,and those the Commlsslon Is
authorized to make thereunder, are designed to accom-
plish the identical ends insofar as the lnstallatlon,
etc. of liquefied petroleum gas facilities as the 'Plumb-
ers License Lav Is designed to accomplish as to plUma-
lng installation enerally, including gas fixture in-
stallation. The f5lquefled Petroleum Gases Law goes fur-
ther 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 equipment designed for the utlllzstion of
liquefied petroleum gases.
Are ve, therefore, to construe the Plumber’s
License Law as a modification of the Liquefied Petro-
leum Gases Iaw In requlrlng an additional or duplicate
exaaination into the competency of those engaged solely
In the business contemplatedby Article 6053, and lncl-
dentally require them to qualify to engage ln plumbing
actlvltlee having no relation whatever to the lnetalla-
tlon, repalr and servicing of liquefied petlioleuia
gas
facllltles? Such an Interpretationcan arise based
solely on a strictly literal interpretationof its lan-
Bua ge l
It Is true that one holding a general license
having as Its purpose the accomplishmentof leglelatlve
ends dlffepent from those of a more specific license to
do things Included In the general license may be requir-
ed to obtain the specific license. It my also be true
that one holding such a specific license my be requlr-
ed to obtain the general license. But vhen the specific
license requirement Is designed to accomplish all of the
ends of the general license requirement a.ndmope too,
then ve believe that the latent of the Legislature is
fulfilledby meeting the requirements of the specific
license by one engaged goleu In the endeavor or oaou-
patlon contemplatedby the latter.
This principle has been recognized In the con-
struction of tax and license statutes and opdlnances In
sitnationsbelieved to be anarlogoueto the present con-
siderations. In the case of Terse Company v. Stephens,
103 5.W. 481, by the Supreme Conzltof Texas, the court
said:
“The 8ame person or corporationmay
carry on several different businesses, and,
of course, may be taxed in respect of each,
but, vhen the Legislature has defined and
taxed one business, It Is not to be aseum-
ed that it has Intended to again tax the
same business uuder another name, nor Is
It to be assumed that It has~fntended to
tax, as a distinct business, 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 no
Hon. C. B. Belk, page 6 (V-541)
plu+ng work-other-th+n t+t a~d lnaldentslly to the
business regulated by Article 6053 are not subject to
the Plumbers Ucenee Law.
The Plumbing License Law contains provisions .
whiah we believe support the constructionwhich 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,alteration and Inspection
of all pipes, fauce.t&,tanks, valves, and
other fixtures by and through which a sup-
ply of eater, gas or sevage is used or
carried; and provided that they shall not
be placed In any bulldlng therein exaept
in accgrdanoe with such rules and regula-
tions.
The above Section la in direct conflict with
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 utilization of
liquefied petroleum gases 1s concerned. An attempt to
blend these enactments Into a system of concurrent 4nd
simultaneous jurisdictionover the llquefled~petroleum
Industry la obviously Impractical. Ro such result could,
In reason, havebeen contemplatedby the Legislature.
Repeals by lmpllcation~arenot favored. Here
a specific lav deals vlth licensing liquefied petroleum
gas handlers and a later general law is silent on this
particular type of workman. Both laws must be harmonie-
ed and upheld If possible. The later law will not be
held to lmplledly repeal the former. Uquefled petro-
leum gases being highly explosive, require special han-
dling and ihe Legislature has made special provision for
Its handling thPough.the Railroad Commission,and not by
regulation through the State Board of Plumbing Examin-
ers.
Your first two question are, therefore,answer-
ed In the negative.
BOIL C. E. Belk, page 7 (v-541)
As to your third question, hating concluded
that liquefied petroleum gas enterprlsedare not eub-
ject to the Plumbing License Law, we,belleve that the
extent to vhich munlclpalltlesmight regulate them Is
not affected by anfof the provisions thereof. We aan-
not state aategorlcallythat local city plumbing ordi-
nanaee would not apply to them in any particular. How-
ever, since the Legislature has seen fit to laae them
under the regulation and supervision of t&e Ii
allroad
Commission,to that extent Railroad Commlsslonregula-
tion would be flxcluslve.The general+e Is stated in
43 C. J. 422, Munlclpal Corporatlone , Section 553:
“The power to regulate public utll-
ltlee~may be 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 conferred on the board or
commissionmay be exercised without being
interferedwith by the regulation of the
munlclpal corporation,the power may be
exercised concurrentlyto the extent that
the mtmlalpal regulation does not conflict
vlth the exerolse of the power aonferred
upon the state board or~aoam&sslon. Fol-
lowing the general rule, municipal regula-
tions dealing with public utllltles can-
not conflict vlth statutory enactments on
the subject. Ordinarily power conferred
on public service boards or comnlsslons
over publla utllltles exaludes the cq-
poratlon from acting In the premises.
This rule would also apply where activities,
other than those of “public utilities”, are under statu-
tory authority, regulated by a State board or commls-
slon.
SUMMARY
Liquefied petroleum gas enterprises
regulated under Article 6053, V. C. S.,
are not subject to the provisiona of Arti-
cle 6243-101, V. C, S., the Plumbing Li-
tense Lav of 1947. Municlpalltlesmay not
regulate such liquefied petroleum 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
thereof by the Railroad Coml&an.
TotAreVtRy tFUly,
c&c&)+&
,.
ha bDanie1 '
Assistant