Railroad Commission of Texas v. United Parcel Service, Inc.

• Decision Date: 08 April 1981
• Docket Number: No. 13267,13267
• Citation: 614 S.W.2d 903
• Parties: RAILROAD COMMISSION OF TEXAS et al., Appellants, v. UNITED PARCEL SERVICE, INC., Appellee.
• Court: Texas Court of Appeals

Page 903

614 S.W.2d 903

RAILROAD COMMISSION OF TEXAS et al., Appellants, v. UNITED PARCEL SERVICE, INC., Appellee.

No. 13267.

Court of Civil Appeals of Texas, Austin.

April 8, 1981.

Rehearing Denied April 29, 1981.

B. D. St. Clair, McGinnis, Lochridge & Kilgore, Austin, and Jay W. Elston, Fulbright & Jaworski, Houston, for appellee.

R. Lambeth Townsend, Asst. Atty. Gen., Austin, for Railroad Commission of Texas.

Philip Robinson, Robinson, Felts, Meyers & Starnes, Austin, for Central Freight Lines, Inc., Red Arrow Freight Lines, Inc., and Valley Transit Co., Inc.

Charles E. Munson, Doherty, Birnbaum & Munson, Austin, for Kerrville Bus Co., Inc., Painter Bus Lines, Inc., Greyhound Lines, Inc., Arrow Coach Lines, Southwestern Transit Co., New Mexico Transp. Co., Texas, New Mexico and Oklahoma Coaches, Inc., Texas Motor Coaches, Inc. and Central Texas Bus Lines, Inc.

Robert J. Birnbaum, Austin, Ernest B. Ledford, Vice President, Abilene, for Merchants Fast Motor Lines, Inc.

Timothy S. Herman, Rogers, Hughes & Herman, Austin, for Morgan Express, Inc., Northern Tex-Pack Exp., Inc., Beaver Express, Inc., O & A Tex-Pack Exp., Inc., Liberty Tex-Pack Exp., Inc., Mistletoe Tex-Pack Exp., Inc., Western Tex-Pack, Inc. and Blue Bonnet Exp., Inc.

POWERS, Justice.

United Parcel Service, Inc., appellee, filed an application with the Texas Railroad Commission requesting a certificate of convenience and necessity authorizing appellee to conduct intrastate operations as a common carrier of a limited class of general commodities. Stated generally, the application proposed a statewide, small-package pickup and delivery service in the nature of a parcel post service. The Commission dismissed the application "for want of jurisdiction" and appellee obtained judicial review of the Commission's final order by suit in the 200th Judicial District Court of Travis County, Texas. Appellants are the Commission and twenty-four interested motor carriers, defendant and intervenors respectively in the trial court.

The trial court concluded that the Commission possessed jurisdiction. The court therefore set aside the Commission's order of dismissal and remanded the case to the agency to be considered on its merits. We affirm the judgment of the trial court.

Appellants bring to this Court several points of error which, taken together, attack the trial court's decision that the Commission had the requisite statutory power under Tex.Rev.Civ.Stat.Ann. art. 911b, to consider and determine appellee's application. That statute governs such applications and intrastate motor carrier operations generally. By other points of error they challenge certain "findings of fact" made by the trial court. These latter points of error refer to matters that the trial court "deemed" true for the purpose of its review of the agency's final order of dismissal. There was no evidentiary hearing in the agency or in the trial court.

Appellee proposed in its application a motor carrier service to be conducted on all the public roads of the state. ¹ Briefly stated Other motor vehicles belonging to appellee would make regular trips transporting packages between appellee's "operating centers" and "hubs." The "hubs" and "operating centers" are transfer facilities located throughout the state where packages are collected, sorted and directed to their destinations. The vehicles making these trips will travel the same routes each time at uniform time intervals. Departure and arrival times for these trips are set out in a timetable. Appellee intends to orchestrate all of its intrastate operations so that deliveries will be made to Texas consignees within one or two business days.

appellee proposed a service that would operate as follows. Certain of appellee's motor vehicles would leave at 9:00 A.M. each business day from appellee's "operating centers" located in various cities, for the purpose of picking up and delivering small packages. No times are specified in the application for such pickups and deliveries and the routes of travel are not fixed. Appellee states that it intends to have a vehicle appear each business day at the premises of each shipper desiring the service, without special call and regardless of where the shipper is situated or whether he has any packages to ship that particular day. The routes traveled by these vehicles would depend upon the location of such shippers and the location of the consignees of that day's packages. In addition, these vehicles would pickup and deliver packages on a call and demand basis. The vehicles employed on these pickup and delivery circuits would return to the "operating centers" each day at 5:00 P.M.

Appellee presently operates an interstate motor carrier service in the manner described above; and its proposes to integrate the planned intrastate service and its existing interstate service.

Appellants describe the proposed intrastate service as being one to be conducted "over irregular routes and on irregular schedules." This refers to the daily pickup and delivery circuits described above. They argue that since 1931, when Art. 911b was first amended, only "contract carriers" and "specialized motor carriers" may lawfully operate "over irregular routes and on irregular schedules" and common carriers such as appellee are prohibited from doing so. They argue further that section 10 of Art. 911b forbids the Commission to "consider" any common carrier's application for a certificate of convenience and necessity unless the application shows, among other things, the "complete route or routes over which the applicant desires to operate" and the applicant's proposed "schedule of service." Citing a series of amendments to Art. 911b, appellants interpret the former phrase to mean a "regular" or "fixed" route or routes. The latter phrase they interpret to mean planned trips at "regular" or "fixed" intervals, as in a timetable of fixed arrival and departure times. The daily pickup and delivery circuits proposed by appellee are not fixed either as to routes or the times of pickup and delivery; hence appellants reason that the Commission properly dismissed the application because the agency was not permitted to "consider" such an application under section 10 of Art. 911b. ²

An understanding of appellants' interpretation and argument requires that one bear in mind that Art. 911b has always required an orchestration of two different factors pertaining to the Commission's handling of motor carrier applications for certificates of public convenience and necessity: (a) the statutory definition of the kind of motor carrier eligible to make such an application; and (b) the categories of information required by section 10 to be supplied in such application.

The antecedent of Art. 911b defined the eligible carriers (Class A motor carriers) in terms of their proposed method of operations, including in the class only those carriers with fixed routes and regular schedules. Section 10 required the applications made by such carriers to show their proposed "time schedule" and "complete route or routes." While admitting that the Class A carriers were abolished as a class by an amendment, appellants argue that section 10 should continue to be interpreted so as to fix upon applicants the old operational limitations of fixed routes and regular schedules. Appellee disagrees.

Article 911b is a patchwork statute providing for the State's regulation of motor vehicle operations for gain, when they are conducted within the state, upon its roads, and outside incorporated cities, towns and villages. In the provisions of this article appellee finds a delegation of express or implied authority allowing the Commission to consider and determine appellee's application, as in the ordinary case of a common carrier seeking a certificate of convenience and necessity. On the other hand, appellants argue vigorously that these same statutory provisions confer no such express or implied authority upon the Commission, with respect at least to the manner of operation proposed in appellee's application.

The Commission's hearings examiner agreed with appellee's interpretation of Art. 911b, but the Railroad Commissioners overruled him, upholding appellants' interpretation of the statute. The trial court, in turn, reversed the decision of the Commissioners on this point and remanded the case to the agency for a determination of the application on its merits. Appellants and appellee seem to assume that the pertinent provisions of Art. 911b are ambiguous and urge this Court to adopt a judicial construction consistent with their respective views of legislative intent, as that intent is allegedly manifested in matters outside the language of the statute as it is presently written.

We hold, however, that the pertinent parts of Art. 911b relied upon by appellants are unambiguous when read with the remainder of the statute. Appellants' argument and reasoning depend upon the ambiguity of section 10(2) ("complete route or routes") and section 10(3) ("proposed schedule of service"). If these phrases are unambiguous, as we hold them to be, there would be little or no room for any judicial construction.

The phrases would be ambiguous only if susceptible to two or more reasonable interpretations when read in context. Appellants argue that the phrase "complete route or routes" means only a "fixed" route or routes, and that the phrase "proposed schedule of service" means only a "time schedule" having "fixed" arrival and departure times. We think these inflexible interpretations are unreasonable for several reasons.

Appellants' reasoning is founded solely upon the proposition that the Legislature, in using these two phrases in section 10, intended that common carriers remain subject to the limitations of "fixed routes" and "time schedules" after an amendment of the section in 1931, notwithstanding the amendment removed these operational limitations from the one class of common...