RRC v. Acme Truck Line IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-473-CV





RAILROAD COMMISSION OF TEXAS, ET AL.,

APPELLANTS

vs.





ACME TRUCK LINE, INC., ET AL.,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 494,794, HONORABLE JERRY DELLANA, JUDGE

PER CURIAM

This appeal arises from the district court's review of an agency order. Appellees, Acme Truck Line, Inc., and numerous trucking companies, petitioned the court for judicial review of an order of appellant Railroad Commission of Texas. ⁽¹⁾ See Tex. Rev. Civ. Stat. Ann. art. 911b, § 20 (West 1964); art. 6252-13a, § 19 (West Supp. 1992). Five trucking companies intervened in support of the Commission. From the trial court's judgment reversing the order of the Commission and setting it aside, the Commission and four of the intervenors appeal. ⁽²⁾

The Commission issued the order in dispute to interpret a specialized motor carrier certificate known as the Bewick Record certificate. This certificate, which the Commission issued in 1970, granted authority to transport,

(1)(a) Articles of iron, steel and other metals or materials, individually or in bales or bundles, viz:

Plates; Posts; Angles; Forms; Sheets; Rounds; Channels; Beams; Ingots; Piling; Billets; Blooms; Reinforcing Rods; Bars or Flats; Wire Mesh; Pipe; Tubing; Wire Rod; Slab; Skelp; Cattle Guards; Conduit; Forgings; Guard Rails; Scaffolding and Scrap Metal (including crushed, mashed or flattened motor vehicles).

(b) Concrete Products, prestressed or reinforced.

. . . .

(2) Aircraft; Aircraft Engines; Aircraft Fuselages; Aircraft Service Trucks; Balls, crushing or grinding; Bins; Blasting Sand in Sacks; Blowers; Coils; Culverts; Feeders, Livestock; Filters and Filter Elements; Grease Racks; Harvesters; Muffler Stacks; Pier Tubing; Poles, Power; Rotor Blades; Scales; Spreaders or Applicators; Sprinkler Systems; Street Sweepers; Steel Strand, in rolls or on reels; subject to the following restriction:

. . . .

The items in these two paragraphs were limited to (1) those above a certain weight when moving in the city service area of the "regular-route common carriers" and (2) those requiring special equipment to load and transport.

In 1989, the Commission gave notice that it was initiating a declaratory-order proceeding to interpret the authority granted in the Bewick Record certificate. The Commission stated in the notice that it intended to determine the breadth of the term "materials" in the phrase "articles of iron, steel and other metals or materials." It noted that a broad construction of the term might encompass such commodities as gypsum wallboard, wood paneling, and formica, among others.

The Commission conducted a hearing and in 1990 issued an order in which it concluded that the phrase "articles of iron, steel and other metals or materials" in paragraph 1(a) unambiguously refers to the listed articles made of materials other than iron, steel, or other metals. The Commission accordingly ordered that the authority granted in the Bewick certificate be interpreted to include the transportation of sheets of gypsum wallboard, hardboard, or plywood, and that the authority not be limited to articles constructed, in whole or substantial part, of iron, steel, or other metals.

On review of this order in the district court, the court concluded that in granting the Bewick Record certificate in 1970, the Commission at that time intended to authorize transportation of the specifically named articles in paragraph 1(a) only when made in whole or in substantial part of iron, steel, or other metals. The Commission brings a single point of error in this Court asserting that the district court's interpretation of the Bewick certificate of authority is erroneous as a matter of law. The four appellant intervenors bring additional points of error, which we will resolve in considering the Commission's point.

The Commission may, for administrative purposes, interpret its certificates, though it may not use the occasion of interpreting to amend a certificate. Railroad Comm'n v. Home Transp. Co., 670 S.W.2d 319, 323, 25 (Tex. App.--Austin 1984, no writ). When an agency officially interprets its own order, its interpretation becomes a part of the original order. Texarkana & Ft. S. Ry. v. Houston Gas & Fuel Co., 51 S.W.2d 284, 287 (Tex. 1932); Public Util. Comm'n v. Houston Lighting & Power Co., 645 S.W.2d 645, 647 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Thus, the Commission's 1990 order interpreting the Bewick Record certificate became part of the original 1970 order granting the Bewick authority.

A court may review the Commission's interpretation of its previous order. Home Transp. Co., 670 S.W.2d at 323; e.g., Houston Lighting & Power Co., 645 S.W.2d at 647. Judicial review of the validity of an interpretive order involves examining the original order, of which it is a part. Home Transp. Co., 670 S.W.2d at 325; Houston Lighting & Power Co., 645 S.W.2d at 647. The intent of the Commission in granting a certificate is a question of law, and that intent is ascertained by the same rules that apply to statutes. State v. Bilbo, 392 S.W.2d 121, 122 (Tex. 1965); Home Transp. Co., 670 S.W.2d at 325. A court is not bound by an administrative determination of a question of law. Brown v. Humble Oil & Refining Co., 83 S.W.2d 935, 943 (Tex. 1935); City of Dallas v. Furrh, 541 S.W.2d 271 (Tex. Civ. App.--Texarkana 1976, writ ref'd n.r.e.). The question on judicial review of the Commission's interpretation of the Bewick certificate is whether that interpretation is legally correct. Pension Bd. of the Police Officers Pension Sys. v. Colson, 492 S.W.2d 307, 308-09 (Tex. Civ. App.--Beaumont 1973, writ ref'd n.r.e.).

In determining the meaning of an order granting a certificate, this Court can consider both the order that gave rise to the certificate and the application that gave rise to the order. Home Transp. Co., 670 S.W.2d at 325; Houston Lighting & Power Co., 645 S.W.2d at 647; see State v. Bilbo, 392 S.W.2d 121, 122 (Tex. 1965). The Bewick certificate and certain applications are part of the agency record filed in the district court and, thereafter, in this Court. See Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 19(d) (West Supp. 1992). When the Commission issued the order granting the Bewick Record certificate of authority, it expressly adopted the hearings examiner's report and made it a part of the order. We will therefore consider the examiner's report in determining the intent of the Commission in its 1970 order. E.g., Home Transp. Co., 670 S.W.2d at 325.

The applications and order in the Bewick proceeding disclose that in 1969, one hundred fifty-one specialized motor carriers requested the Commission to amend their current certificates to add "size and weight" authority. This authority would allow them to carry oversize and heavy items that required special equipment to load and transport. See Tex. Rev. Civ. Stat. Ann. art. 911b, § 1(i) (West 1964). The majority of the applicants sought authority to transport "heavy machinery, industrial and manufacturing equipment, materials and supplies and other commodities, all of which by reason of length, width, height or size, require the use of special devices, facilities, or equipment for their loading, unloading, and/or transportation." The applicants already had authority to carry oilfield equipment, and most were equipped to carry the additional heavy and bulky items requested.

The record before the Commission in its declaratory-order proceeding contains the exhibits to the applications explaining the need for the proposed service for only two of the applicants. One of these exhibits is in the application of Bewick Trucking Co., Inc., whose name was eventually given to the proceeding; the other exhibit is in the application of Melton Truck Lines, Inc. The hearing on the applications was consolidated, according to the examiner's report, because all applications involved common questions of law and fact. While perhaps not identical to the rest, the applications of Melton and Bewick can at least be considered representative of the whole.

To justify their request for authority, Bewick and Melton submitted exactly the same exhibit in their applications. In it, they cited the recent appearance in Texas of companies engaging in basic industry. They named as examples four steel companies, which operated plants in Texas and which had produced, along with other companies, an intrastate commerce in heavy, basic iron and steel items and a related commerce in fabricated and manufactured items. To illustrate the development of Texas' basic industry, the applicants presented survey results of the value in 1966 of shipments in four heavy industrial categories: primary metal industries, fabricated metal products, non-electrical machinery, and electrical machinery. The applicants asserted that Texas industry had a critical need for their services under a broad, heavy hauling authority.

After consolidating the one hundred fifty-one applications into a single proceeding, the Commission ordered the companies to specify the commodities they sought to transport. The companies then amended their applications to request authority to carry,

Iron, Steel and other articles, individually or in bales or bundles, viz;

Plates; Posts; Angles; Forms; Sheets; Rounds; Channels; Beams; Ingots; Pilings; Billets; Blooms; Reinforcing Rods; Bars; Wire Mesh; Pipe; Tubing; Wire Rod; Slab; Skelp; Cattle Guards; Concrete Products, prestressed or reinforced; Concrete Blocks; Conduit; Forgings; Guard Rails; Scaffolding and Scrap Iron, subject to the following restriction: . . .

The applicants included a second paragraph listing other items such as aircraft, aircraft service trucks, harvesters, and sprinkler systems. The items in these two paragraphs were limited by size and weight.

The companies' amendment eliminated protest to all the items requested except concrete blocks, and when the Commission heard testimony on the applications in January 1970, the companies deleted concrete blocks from the applications. With this amendment, the applications became unopposed.

In his report and proposed order, the hearings examiner summarizes the public testimony given in support of the applications. The order in which he sets out the testimony largely conforms to the order of the commodities in the description. He begins by stating that the applications were supported by numerous iron and steel manufacturers, distributors, importers, and fabricators, and that each of these companies distributed some or all of the iron and steel articles listed in paragraph one. The examiner mentions that some of these companies also needed to transport tinplate, terne plate, and black plate, items not entirely made of iron or steel. ⁽³⁾ He further mentions that a metal company supported the movement of items in paragraph one made of both ferrous and nonferrous metals.

After noting that several companies supported transporting reinforced concrete products, the examiner lists companies needing specific commodities from the second paragraph transported. Interspersed with these items are several items from the first paragraph: forgings; guard rails; post, pipe, and tubing; crushed motor vehicles; and cattleguards. The examiner also reports that the 249-member Associated General Contractors, Texas Highway--Heavy Branch, supported all the commodities involved except livestock feeders, street sweepers, and harvesters. The members of this association did contracting work on bridges, dams, airports, parking lots, and plants, but did not erect residences and buildings.

The examiner states that during the hearing, the applicants jointly amended several items, such as "bars," which was expanded to "bars or flats" after supporting steel companies testified that iron or steel bars were often known as "flats."

The hearings examiner also sets out his proposal for one further change to the commodity description. He notes that two steel companies and a metal products company were concerned whether the description "iron, steel, and other articles" would include plates, posts, and other items made of "metals other than iron or steel." To clarify the grant of authority in paragraph one, the examiner concluded that the item description should read:

(1)(a) Articles of iron, steel and other metals or materials, individually or in bales or bundles, viz:

Plates; Posts; Angles; Forms; Sheets; Rounds; Channels; Beams; Ingots; Piling; Billets; Blooms; Reinforcing Rods; Bars or Flats; Wire Mesh; Pipe; Tubing; Wire Rod; Slab; Skelp; Cattle Guards; Conduit; Forgings; Scaffolding and Scrap Metal (including crushed, mashed or flattened motor vehicles).

(b) Concrete Products, prestressed or reinforced.

The examiner states that public support given to the applicants seeking to transport the specifically named items made of "material other than iron and steel" justified the change.

The examiner found that existing transportation services were inadequate and that a public need existed to transport the requested commodities; he recommended that the applications be granted. In March 1970, the Commission ordered the applications granted and adopted the examiner's report as part of its order.

Examining the applications and order, it appears that the applicants, the examiner, and the companies supporting the applications thought of the items in paragraph 1(a) as made of metal. The applicants in the Bewick proceeding sought authority to transport items that were cumbersome or heavy. The Bewick and Melton applications specifically identified the recent development of Texas' basic iron and steel industry and concurrent commerce in heavy iron and steel items as the impetus behind the application. The need to transport "heavy materials, machinery, equipment, and other commodities which require special equipment" was presented as growing out of the recent addition of basic industrial commodities to Texas' commerce. Though all the applications are not in the record the Commission examined when it interpreted the Bewick certificate, the Commission had to consider that it could not have granted the Bewick certificate unless the applicants had specified in their applications the reason additional service was needed for the commodities they sought to transport. Act of May 19, 1941, 47th Leg., R.S., ch. 442, § 3, 1941 Tex. Gen. Laws 713, 716-17 (Tex. Rev. Civ. Stat. Ann. art. 911b, § 5a(c), since amended).

The examiner characterizes the items listed in paragraph one as "iron or steel articles," and he mentions only the numerous iron and steel manufacturers as supporting the transportation of this group of articles. Here, the examiner also refers to the steel companies that move three kinds of metal plate not entirely made of iron or steel.

The examiner reports no testimony that supports the transportation of gypsum wallboard, wood paneling, or formica. While much testimony is recorded from companies engaged in heavy industry, none appears from any representative of the lumber or general building industry. Notably, only the Texas Highway division of the Associated General Contractors testified; this group did not erect residences and buildings. The testimony of the public witnesses thus does not support a broad construction of the Commission's grant of authority. Without a showing that the service was needed and that it would promote public convenience, the Commission could not issue the amended specialized motor carrier certificate. Act of May 19, 1941, 47th Leg., R.S., ch. 442, Sec. 4, § 5a(d), 1941 Tex. Gen. Laws 713, 717 (Tex. Rev. Civ. Stat. Ann. art. 911b, § 5a(d), since amended). Further, the Commission was required to set forth in its order "full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers and the public need" for the service it authorized. Id. The examiner bases his findings of inadequacy and public need on his summary and discussion of the public testimony. His summary and discussion do not mention support for transporting gypsum wallboard, wood paneling, or formica.

The examiner explains that he proposed to replace the phrase "iron, steel and other articles" with "articles of iron, steel and other metals or materials" to address the concerns of two steel companies and a metal products company that the original description did not include items in paragraph one made of "metals" other than iron and steel. The examiner made the change in view of the public support for transporting the specifically named items made of "material" other than iron and steel. The examiner, however, does not record any public testimony supporting paragraph-one items made specifically of non-metallic materials.

When the examiner amended the commodity description, he also divided paragraph one into two parts. The examiner separated the item "concrete products, prestressed or reinforced" from the other items in paragraph one and made it part (b), leaving the remaining paragraph-one items in part (a). The creation of a separate division for concrete products is consistent with an intent to limit items in part 1(a) to those made of metal. If "materials" in the commodity description covered more than metal-based items, there would be no reason to move concrete products into its own category. Again, the examiner meant the new commodity description to clarify the authority granted for transporting items in paragraph one given the companies' doubts that "iron, steel and other articles" covered metallic items not made of iron or steel.

The caption of the Commission's order granting the Bewick certificate reads, "Application of Bewick Trucking Co., Inc., et al, Docket no. 5192, et al, to amend specialized motor carrier certificates so as to authorize the transportation of iron and steel articles and named size and weight commodities." We may consider this caption in seeking the Commission's intent in making the order. Texarkana & Ft. S. Ry. Co., 51 S.W.2d at 287-288. The caption is designed to specify the subject matter under consideration as succinctly as possible. Id. at 288. The two groups of items in the caption, iron and steel articles and named size and weight commodities, logically correspond to the items grouped into paragraph one and paragraph two of the commodity description. The caption lends support to a determination that the Commission intended the articles in paragraph one to be made of metal.

Together the applications, the order, and the examiner's report incorporated by the order show that the commodities before the Commission for consideration under paragraph 1(a) were metallic. Given that the Commission could not grant transportation authority beyond the scope of the applications and the showing of public need, we determine that the Commission intended the phrase "articles of iron, steel and other metals or materials" to cover items made wholly or substantially of metal.

The Commission's manifestation of intent is supported by the principle that the meaning of a word in a sentence may be ascertained by referring to the meaning of words associated with it. Bear Bros. & Hirsch v. Marx & Kempner, 53 Tex. 298, 301 (1885). When general and specific words are associated together in a statute, the general words are read to refer to the subject matter that was in the mind of the legislature and are strictly limited to it; the specific words thus qualify the general words. Gulf Ins. Co. v. James, 185 S.W.2d 966, 969 (Tex. 1945); Stanford v. Butler, 181 S.W.2d 269, 272 (Tex. 1944). One court has said that in interpreting statutes, the coupling of words ordinarily denotes an intention that they be understood in the same general sense. See Department of Health v. Sol Schnoll Dressed Poultry Co., 245 A.2d 532, 535 (N.J. 1968). "Materials," being coupled with "metals" by the conjunction "or," could sensibly be understood to mean articles at least partly made of metal. Thus, the phrase "articles of iron, steel and other metals or materials" as a whole describes a category of articles unified by their metallic content. E.g., Farmers' & Mechanics' Nat'l Bank v. Hanks, 137 S.W. 1120, 1123-24 (Tex. 1911). We overrule the Commission's point of error and all points asserted by the appellant intervenors.

The district court correctly concluded that paragraph 1(a) of the Bewick Record certificate authorized transportation of the named articles only when made in whole or substantial part of iron, steel, or other metals. We therefore conclude that the district court was correct in reversing the Commission's order. Having reversed the Commission's order, the proper judgment was one remanding the case to the Commission for further proceedings. Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 19(e) (West Supp. 1992); Texas State Bd. of Pharmacy v. Seely, 764 S.W.2d 806, 815 (Tex. App.--Austin 1988, writ denied). Accordingly, we modify the district-court judgment to order that the cause be remanded to the Railroad Commission for further proceedings consistent with this opinion and the judgment of the trial court. As so modified, the judgment is affirmed.

[Before Justices Powers, Aboussie and B. A. Smith]

Modified and, as Modified, Affirmed

Filed: November 18, 1992

[Do Not Publish]

1. The companies who petitioned the district court, in addition to Acme Truck Line, Inc., are Bilbo Freight Lines, Inc.; Bilbo Transports, Inc.; G. P. Bourrous Trucking Company, Inc.; Building Materials Carriers Bureau, Inc.; Central Freight Lines Inc.; Gypsum Transport, Inc.; E. A. Holder, Inc.; Melton Truck Lines, Inc.; Merchants Fast Motor Lines, Inc.; McWaters Trucking, Inc.; Mid-Way Transportation, Inc.; Oil Transport Company; Southern Gulf Trucking, Inc.; and Berwyn Walker, Inc.

2. The five companies who intervened in the trial court are K Truck Lines, Inc.; Big Mac Trucking Company; Blaschke Trucking Company; B.N.M., Inc.; and A. Leander McAlister Trucking Co. All intervenors except K Truck Lines, Inc., are before this Court on appeal.

3. "Tinplate" refers to thin iron or steel sheet coated with tin; "terne plate" means steel plate coated with an alloy of lead and tin; and "black plate" means either cold-rolled sheet steel before cleaning or sheet steel coated with a lacquer or enamel. The Random House Dictionary of the English Language 1986, 1959, 218 (2d ed. unabridged 1987).