ALAMO EXPRESS, INC., et al., Appellants, v. RAILROAD COMMISSION of Texas and Missouri Pacific Truck Lines, Inc., Appellees, 407 S.W.2d 479

POPE, Justice. This is a direct appeal from an order of the trial court which upheld the validity of a Railroad Commission order.

Article 1738a, Vernon's Ann. Tex. Civ. St. Missouri Pacific Truck Lines, Inc. applied for an amendment to its common carrier certificate which would authorize it to use an alternate route between Houston and San Antonio. It already had authority to operate between Houston and San Antonio over a route that was seventy-eight miles longer. The Commission authorized the amendment so Missouri Pacific could operate over Highway 90 with closed doors between those two termini but permitted a joinder at those termini with Missouri Pacific’s authorized routes west of San Antonio and east of Houston.

The trial court upheld the validity of the order and refused to enjoin the issuance of the amended certificate. Seven protesting carriers urge that the Commission order is void because it did not comply with

Section 5a(

d) of

Article 911b, which requires full and complete findings of fact which support the order, and also because the order is not reasonably supported by substantial evidence. We affirm the judgment of the trial court.

Section 5a(

d) requires the Commission to set forth in its order full and complete findings of fact. Missouri Pacific contends that it is a regular route common carrier, that

Section 5a (

d) governs orders granting certificates to specialized motor carriers, but that

Section 12(

a) of the Motor Carrier Act governs orders on applications for regular route common carriers such as Missouri Pacific.

Section 12(

a) provides only that the order be accompanied by a concise written opinion. The order in question makes full findings about many matters which the protesting carriers do not attack. The findings which are attacked as too general are those set forth in the margin. The history of the Motor Carrier Act, the construction of the statutes, and former decisions convince us that an order granting a certificate for a regular route common carrier is controlled by

Section 12 (

a) instead of

Section Sa(d). The two sections provide in part:

Section 5a (d). “The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall 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 proposed service.”

Section 12(a). “After hearing and such investigation as the Commission may make, it shall be the duty of the Commission to grant or refuse the application, and, in any contested hearing, the Commission shall, along with its order, file a concise written opinion setting forth the facts and grounds for its action, * * In 1929 the Texas Legislature for the first time undertook the regulation of motor freight carriers over Texas highways. Acts 41st Leg.Reg.S ess. 1929, Ch. 314, p. 698. In 1931 the Motor Carrier Act was substantially amended. Acts 42nd Leg.Reg. Sess.1931, Ch. 277, p. 480.

By the 1931 Act, regular route common carriers were required to prove public convenience and necessity. Sections 8, 9, 10, 11, and 12 of the Act stated in some detail the procedures that an applicant for a certificate as a regular route common carrier must follow.

Section 12(

a) was a part of the 1931 Act. The 1929 and 1931 Acts authorized a class of carriers known as special commodity carriers. Such carriers operated upon irregular routes, did not have fixed schedules, transported commodities that required special equipment and were not regarded as common carriers. The requirements for applicants for special commodity permits were different from those of regular route common carrier certificates. In 1941 the Legislature enacted the Specialized Motor Carrier Act. Acts 47th Leg.Reg.Sess., Ch. 442, p. 713.

The purpose of the Act was to create and regulate the holders of and applicants for permits and certificates as specialized motor carriers-as a new class of common carrier. The 1941 Act made substantial changes in and additions to the regulation of irregular route carriers of commodities which required special equipment. The Act contained seven sections, all of which related to special commodity carriers.

Section 1 declared that the policy of the Act was “to create a class of common carrier motor carriers designated as ‘specialized motor carriers.’ ”

Section 7 of the Act said that an emergency existed because carriers of special commodities were not regulated according to the needs of the general public. In other words, the purpose of the 1941 Act was to make provisions for the regulation of special commodity carriers. The provisions for issuance of certificates to the new class appear in

Section 5a,

Article 911b, V.T.C.S. Procedures for applicants for certificates as regular route common carriers, found in Sections 8 through 12,

Article 911b, were undisturbed and unrepealed. We see, therefore, that the procedures for the regulation of the two classes of common carriers have different legislative origins and are contained in separate sections of the Motor Carrier Act. Procedures respecting the two-classes of carriers are and always have been different in many ways. The protesting carriers’ argument is that the phrase “or any other common carrier” contained in Sections 5a (

c) and 5a (

d) extends the more stringent requirement as to findings to regular route common carriers. Such a construction would require an implied repeal of

Section 10 of the Motor Carrier Act, and would leave the procedure for applications and hearings for regular route common carriers in confusion. Sections 5a (c), 5a (

d) and 10 must be examined. They, with italics added, are: “5a (c). The Commission shall have no jurisdiction to consider, set for hearing, hear, or determine any application for a certificate of convenience and necessity authorizing the operation of a ‘specialized motor carrier’ or any other common carrier except as provided in the preceding paragraph unless the application shall be in writing and set forth in detail the following facts: “1.

It shall contain the name and address of the applicant, who shall be the real party at interest, and the names and addresses of its officers, if any, and shall give full information concerning the financial condition and physical properties of the applicant. “2. The commodity or commodities or class or classes of commodities which the applicant proposes to transport and the specific territory or points to, or from, or between which the applicant desires to ■operate, together with the description of each vehicle which the applicant intends to use. “3.

It shall be accompanied by a map, showing the territory within which, or the points to or from or between which, the applicant desires to operate, and shall contain a list of any existing transportation company or companies serving such territory, and shall point out the inadequacy of existing transportation facilities or service, and shall specify wherein additional facilities or service are required and would be secured by the granting of said application. “5a(d).

Before any such application shall be granted, the Commission shall hear, consider and determine said, application in accordance with Sections 8, 9, 11, 12, 13, 13a, 14, and 15 of

Chapter 277, Acts of the Forty-first Legislature, Regular Session, as amended (Article 911b, Revised Civil Statutes of the State of Texas, 1925, as amended), and if the Commission shall find any such applicant entitled thereto, it shall issue certificate hereunder on such terms and conditions as is justified by the facts; otherwise said application shall be denied.

The Commission shall have no authority to grant any application for a certificate of convenience and necessity authorizing operation as a ‘Specialized Motor Carrier' or any other common carrier unless it is established by substantial evidence (1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.

The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall 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 proposed service.

Likewise, the Commission shall have no authority to grant any contract carrier application for the transportation of any commodities in any territory or between any points where the existing carriers are rendering, or are capable of rendering, a reasonably adequate service in the transportation of such commodities.” “Sec. 10. No application for a certificate of public convenience and necessity shall be considered by said Commission unless it be in writing and set forth the following facts: “

(1) It shall contain the name and. address of the applicant and the names; and addresses of its officers, if any,, and shall give full information concerning the financial condition and physical. properties of the applicant. “

(2) The complete route or routes; over which the applicant desires to operate, together with the description of' each vehicle which the applicant intends to use. “

(3) A proposed

schedule of service and a

schedule of rates to be charged between the several points or localities to be served. “

(4) It shall be accompanied by a plat or map showing the route or routes over which the applicant desires to operate, on which plat or maps shall be delineated the line or lines of any existing transportation company or companies serving such territory, and shall point out the inadequacy of existing transportation facilities or service, and shall specify wherein additional facilities or service are required and would be secured by the granting of said application.” In spite of the broad and inclusive statement in

Section 5a (

c) that an application by any common carrier must include the information stated, the only construction which will avoid confusion is one that makes the provision applicable to all common carriers except those provided for in another unrepealed

section of the Motor Carrier Act. The more reasonable construction of the whole act, therefore, is that an applicant for a special commodity certificate must comply with

Section 5a(

c) and an applicant for a regular route common carrier certificate must comply with

Section

Section 5a (

c) requires information which is material to special commodity carriers, but it omits important matters which are essential to regular route carriers.

Section 10, on the other hand, requires information which is vital to regular route carriers but is immaterial to special commodity carriers. Neither

section purports to satisfy the requirements of all common carriers. Each describes a different kind of common carrier.

Section 5a(

c) states that an application must set forth, among other matters, the commodity or commodities which the applicant proposes to transport, the territory in which the applicant desires to operate, and a map showing the territory or points between which the applicant desires to operate. The

section requires information suitable to an irregular route carrier. It has no requirements that the application show the routes, schedules of service and schedules of rates. That information is relevant to and required of an applicant for a regular route common carrier.

Section 10,

Article 911b.

Section 5a(c), in context with the whole act, states the requirements for an application for common carriers that do not operate over regular routes and on fixed schedules.

Section 10 states the requirements for regular route common carriers.

Section 5a(

d) repeatedly uses the terms “such application,” “said application,” and “such applicant.” The

section immediately follows

Section 5a(c), and the sense of the phrases is that they refer to the kind of an application discussed in the immediately preceding

Section 5a(c). That would be an application for a special commodity certificate, and not an application for a regular route common carrier certificate. Moreover,

Section 5a(d), after referring to the application required by 5a (c), in its first sentence shows that in most respects “such application” will be considered in the same way as one for a regular route common carrier but that the application itself shall be different. The sentence states that “the Commission shall hear, consider and determine said application in accordance with Sections 8, 9, 11, 12, 13, 13a, 14, and 15 * * * ” of the Motor Carrier Act.

Section 10 is omitted. This shows that “such application” as used in

Section 5a(

d) refers to the kind of application described in

Section 5a(c), but not the kind described in

Section 10. The phrase refers to an application for special commodity carriers and not to one for a regular route common carrier. The second sentence in

Section 5a (

d) broadly applies to “any application * * * as a ‘Specialized Motor Carrier’ or any other common carrier * * *.” The sentence, however, concerns the measure of proof which all carriers must meet. It requires all classes of common carriers to prove the inadequacy of service, public necessity and public convenience, and to do so by substantial evidence. Regular route common carriers were already required to meet that standard of proof and the 1941 Act was making clear that all carriers from that time forward would be required to prove their applications by substantial evidence. That sentence does not, however, depend upon or refer to

Section 5a (c). The next sentence is: “The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall 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 proposed service.” The sense of the sentence from all of

Section 5a(

d) is that the words, “said application” are used for the same purpose as they were used four other times in the same section, to refer to the application to operate as a specialized motor carrier as described in the preceding

Section 5a(c). This Court has previously held that orders which grant certificates to specialized motor carriers must comply with

Section 5a(

d) and must fully and completely state the findings of fact. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.Sup.1963) ; Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951); Thompson v. Hovey Petroleum Co., 149 Tex. 554, 236 S.W.2d 491 (1951). On the other hand, several opinions of the Courts of Civil Appeals have held that

Section 5a(

d) does not govern orders concerning regular route common carriers but that

Section 12(

a) does. Merchant’s Fast Motor Lines, Inc. v. Red Ball Motor Freight, Inc., 322 S.W.2d 35 (Tex. Civ. App. 1959, writ ref. n. r. e.); Railroad Commission v. Herrin Transportation Co., 262 S.W. This Court delivered its opinion in Hovey on February 7, 1951, and its opinion in Thompson on May 9, 1951. Those cases concerned specialized motor carrier certificates and the Court required compliance with

Section 5a(d). In March of 1951, between the time that those cases were decided, Merchant’s Fast Motor Lines v. Newman was pending in this Court on application for writ of error. The contention was made in that application that

Section 5a(

d) also governed regular route common carriers. Merchant’s Fast Motor Lines filed a supplemental petition and cited Hovey in support of the point. On May 16, the Supreme Court refused the writ with the notation, no reversible error. Although the Court had just decided that

Section 5a (

d) required orders for specialized motor carriers to be supported by full and complete findings, it did not disturb the clear holding by the intermediate court that

Section 12(

a) governed regular route common carriers. The protesting carriers rely upon Miller v. Railroad Commission, supra, and language contained in Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958). Those cases concerned specialized motor carriers, and under any construction, were governed by

Section 5a(d). Neither case presented the issue that is now before this Court. The protesting carriers also rely upon Miller, Thompson,' and Hovey, cited above, as authority for striking down the order for its generality. Even applying the rule of those cases, the order here in question would not be governed by those decisions. In Miller, the finding of fact was embodied in a single sentence, which was clearly inadequate. In Thompson, the order contained a recital of the evidence but no findings of fact from the evidence.

In Hovey, railroads as well as motor carriers protested the grant of additional authority to an applicant. The order found that an inadequate number of tank cars were furnished by the railroads but wholly failed to find that an inadequate number of tank trucks were furnished by the protesting motor carriers. It was a case of no finding at all upon the material issues. We conclude, therefore, the order of the Commission must be tested by

Section 12(

a) and that it met that test. We regard the Commission’s grant of the alternate route to Missouri Pacific as the grant of new authority. Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957). It is our opinion also that the order is reasonably supported by substantial evidence of the inadequacy of existing services and that public convenience and necessity will be served by the new authority. The record in the case is voluminous with more than three thousand pages in the statement of facts in addition to numerous documents.

Eleven carriers serve points on Highway '90 between San Antonio and Houston in addition to Missouri Pacific whose service was along another but more circuitous route between those termini. Thirty-five shippers and receivers of freight between the two termini testified that the existing service was inadequate and unsatisfactory. Their complaints about the companies already serving the route were many. Some •carriers were unable to perform single-line services or overnight services. The wit-messes testified that existing carriers refused to pick up shipments or failed to pick them up.

There were complaints of •damages and loss to shipments, failure to furnish equipment, faulty equipment, and failures to make deliveries when required. These and other complaints were expressed by a large number of the heaviest shippers between the two termini. Extensive economic data showed the growth of the two termini. Data about populations, the number of manufacturing establishments, the number of employees, the number of retail establishments, and the increase in sales per year showed that the industrial and commercial development at the two termini has outdistanced the transportation services afforded.

No new •motor carrier authority has been granted •since 1954. Since that time the markets have expanded four or fivefold. The protesting carriers urge that the testimony is general in nature, shows preferences and desires of shippers rather than material inadequacy and need. They also urge that the applicant must prove that each of the eleven existing carriers is affording inadequate service.

Missouri Pacific’s brief has catalogued the testimony in so far as it applies to inadequacy of services presently afforded by each of the carriers that appealed as well as five other carriers that did not protest the application. From the entire record, we conclude that the Commission’s order is reasonably supported by substantial evidence. The judgment of the trial court is affirmed.

STEAKLEY, J., dissents to this opinion. . “THE COMMISSION FURTHER FINDS FROM ITS OWN RECORDS that the termini of Houston, Texas, and San Antonio, Texas, between which the alternate route is proposed, are large and growing metropolitan areas whose growth has increased substantially over the past few years; that such growth will probably continue in the foreseeable future; that there has been and is now, not only an increase in population, industry and economic activities in said areas, but also an increase in freight tonnage moving through and between said termini and the demands for an expedited and improved common carrier service between said termini are likewise increasing. “THE COMMISSION FURTHER FINDS from the evidence and its own records that the highways over the proposed route are greatly improved over the highways of applicant’s present route between said termini; that the distance between the two termini will be shortened approximately seventy-eight miles each way over the proposed route; that applicant’s use of the proposed route between said termini will provide the public a much safer, more improved and expedited service and will result in operating savings to applicant of some $22,000.00 a year. “THE COMMISSION FURTHER FINDS from the evidence and its own records the pickup and delivery services of the existing common carriers operating between said termini, are often slow, irregular and inconsistent; that delays and inconvenience are often caused on account of two line hauls now being performed by existing common carriers moving freight to and from points located beyond each of said termini, through and over the proposed route, which points are presently served by applicant; that the proposed service will permit applicant to render later and more prompt pickups of freight at points of origin and earlier deliveries at points of destination, thereby providing a more efficient handling and movement of such freight between said termini, from consignors to consignees; that such proposed service will also permit applicant to serve many points located beyond each of said termini presently served by applicant, with direct one line hauls to and from such points, by use of the proposed route between said termini, thereby eliminating the necessity of interchange of freight at either or both of said termini; that in these respects the existing transportation facilities are not adequate or satisfactory and the public need will be better served and filled and the public convenience will be promoted by the granting of this application and permitting applicant to render the proposed service; that the granting of this application will not have any substantially adverse effect upon the operations or service of the existing common carriers presently authorized to use the proposed route and to serve the territory involved, and the public need for, and the public convenience that will be derived from, the proposed service, will outweigh any-nominal competitive effect that might result to the operations of said existing carriers. “THE COMMISSION FURTHER FINDS from the evidence and its own records, after carefully considering the existing transportation facilities and demand for and the need of the additional service, that the service and facilities of the existing carriers serving the territory are inadequate, and that there exists a public necessity for such proposed service, and that public convenience will be promoted by the granting of said application and permitting the operation of motor vehicles on the highways designated in said application as a common carrier for hire. * * * ”