State v. Apollo Transports, Inc.

• Decision Date: 28 February 1980
• Docket Number: No. 8408,8408
• Citation: 596 S.W.2d 618
• Parties: The STATE of Texas, Appellant, v. APOLLO TRANSPORTS, INC., Appellee.
• Court: Texas Court of Appeals

Page 618

596 S.W.2d 618

The STATE of Texas, Appellant, v. APOLLO TRANSPORTS, INC., Appellee.

No. 8408.

Court of Civil Appeals of Texas, Beaumont.

Feb. 28, 1980.

Rehearing Denied March 19, 1980.

R. Lambeth Townsend, Asst. Atty. Gen., Austin, for appellant.

Bill R. Jones, Livingston, for appellee.

KEITH, Justice.

The State appeals from an adverse judgment entered after a bench trial wherein it had sued for civil penalties and injunctive relief in its effort to enforce compliance with the provisions of the Texas Motor Carrier Act, Tex.Rev.Civ.Stat.Ann. art. 911b (1964) and as amended (Supp.1980) ("Act").

The State alleged that the defendant had acted unlawfully on eleven separate days by transporting wood chips for compensation or hire over the public highways in commercial vehicles and trailers other than those authorized by the Railroad Commission in a Specialized Motor Carrier (SMC) Certificate owned by Apollo.

The parties stipulated to the fact that Apollo had transported wood chips over the public highways upon the dates alleged and that it owned the certificate mentioned in State's pleadings. The record of the hearings in 1960, at which time the particular certificate was granted to Apollo's predecessor in title, was admitted by stipulation; and, the parties agreed that photographs of Apollo's equipment tendered by Apollo could be received in evidence.

The certificate owned by Apollo authorized it to transport "DRY COMMODITIES IN BULK", including wood chips, in "tank vehicles, hopper vehicles, hydraulic unloading dump vehicles, cable unloading dump vehicles, and tank type gravity unloading dump vehicles."

In addition to the stipulations, two witnesses testified at the trial. The State offered Lavan Watts, a graduate mechanical engineer and Chief Engineer of Lufkin Industries, Inc., Trailer Division, a manufacturer of truck and trailer bodies. Mr. Watts qualified as an expert witness as to the various types of equipment and testified that the equipment used by Apollo was not the type of equipment specified in the certificate.

The testimony of Apollo's president, William Lynch, a lawyer, former hearing examiner of the Railroad Commission and experienced in the trucking industry, while differing from that of Watts, did not specifically address the question. The thrust of the testimony of Mr. Lynch was that his vehicles became "dump" vehicles when, with fixed equipment supplied by the consignee, the vans could be unloaded; and, the type of van used by Apollo was safer and more economical in operation.

The sole question is whether Apollo's operation conformed to the restricted scope of the authorization contained in the certificate. The answer to this question, in turn, depends upon whether Apollo's certificate required its vehicles to be equipped with internal and self-operating devices for dumping the chips at the destination or simply permitted the use of equipment which could be dumped by permanently fixed devices upon the grounds of the consignee.

Although there are many cases construing the Act, the parties have not cited us to a single appellate opinion which has addressed the narrow question posed.

The statute has been held to be a comprehensive regulatory act designed to regulate all aspects of the commercial use of the Texas highways, including the prevention of unregulated competition. Steele v. General Mills, Inc., 329 U.S. 433, 440, 67 S.Ct. 439, 443, 91 L.Ed. 402, 408 (1947); Oil Field Haulers Ass'n, Inc. v. Railroad Commission, 381 S.W.2d 183, 194 (Tex.1964).

The holding of the Supreme Court in Magnolia Petroleum Company v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935), was summarized in Dye Trucking Company v. Miller, 397 S.W.2d 507, 511 (Tex.Civ.App. Austin 1965, writ ref'd n. r. e.):

"Grants of property rights or privileges by legislative act such as the right to transport certain commodities for hire must be construed strictly and whatever is not unequivocally granted in clear and explicit terms must be considered withheld."

In State v. Bilbo, 392 S.W.2d 121 (Tex.1965), Bilbo had changed the methods of his operation to conform to modern developments and procedures, i. e., the use of palletizing and fork lift trucks in the "unitizing" of heavy loads of products formerly transported as units. The Court, addressing a similar question to that before us, held:

"First, we hold that the intention of the Railroad Commission as expressed in Bilbo's certificate is a question of law. In arriving at a construction of the certificate we may...