It is therefore the opinion of this office that: (a) After an operator of a freight-carrying motor vehicle claiming the exemption from Public Service Commission regulation provided by Section 390.030 (8), RSMo, is apprehended with a gross weight in excess of six thousand pounds, he may remove the excess weight and proceed without being in violation of Section 301.070, RSMo, for such continued travel. Although he is liable to prosecution for having operated an improperly licensed vehicle, the exemption of the vehicle under Section 390.030 is not lost by reason of an isolated instance of operating a freight-carrying motor vehicle with a gross weight of more than six thousand pounds. (b) The licensing and registration of a commercial motor vehicle may be changed from time to time to coincide with the use to which it is intended to be put. An owner having no further use for a license authorizing a gross weight of twelve thousand pounds may relinquish it and secure a license authorizing a gross weight not in excess of six thousand pounds.

...... PUBLIC SERVICE COMMISSION: MCYI'OR VEHICLES: It is therefore the opinion of this office that: (a) After an operator of a freight-carrying motor vehicle claiming the exemption from Public Service Commission regulation provided by Section 390.030 (8), RSMo, is apprehended with a gross weight in excess of six thousand pounds, he may remove the excess weight and proceed without being in violation of Section 301.070,RSMo, for such continued travel. Although he is liable to prosecution for having operated an improperly licensed vehicle, the exemption of the vehicle under Section 390.030 is not lost by reason of an isolated instance of operating a freight-carrying motor vehicle with a gross weight of more than six thousand pounds . (b) The licensing and re- gistration of a commercial motor vehicle may be changed from time to time to coincide with the use to which it is intended to be put . An owner having no further use for a license authorizing a gross weight of twelve thousand pounds may relinquish it and secure a license authorizing a gross wei ght not in excess of s ix thousand pounds . Colonel E. I. Hockaday Superintendent May 14, 1968 Missouri State Highway Patrol Jefferson City, Missouri 65101 Dear Colonel Hockaday: OPINION NO . 1 Fl L E 0 1 This is in response to your request for an opinion of this of- fice concerning the following issues: "(2) After an operator claiming the exemption mentioned in Section 390 .030 has been apprehended with a gross load in excess of 6 ,000 pounds he removes the excess load. Can he thereafter pro- ceed without being in viola tion of Section 301 .070 and continue to claim the exemption provided in Section 390.030? "(3) After an operator claiming the exemption mentioned in Section 390.030 has been apprehended with a gross load in excess of 6,000 pounds he secures a 12,000 pound license for his vehi cle . However, in order to continue to claim the ex- emptions provided under Section 390.030, paragraph 8, he discards the 12 ,000 pound license on the following day and again secures another 6,000 pound license for his vehicle. May this opera- tor continue to claim the aforementioned exemption even though all of the operation is conducted within a ~iven license year for commercial motor vehicles? Colonel E. I. Hockaday The significance of the "exemption 11 referred to in your in- quiries is that, where it applies, the carrier is not subject to regulation by the Public Service Commi ~sio n. Section 390.041, pro- vides in part that the Public Service Commj ~~ · j o n "* * * is hereby vested with power and authority: * * * To license, supervise and regulate every motor carrier in thi s ctnt0. ; * * * " Exceptions to this rule are, however, enumerated in t he 1eYt preceeding paragraph, Section 390.030, which states in part: "The provi ::dons of sections 390 .011 to 390.176 shall not apply to: "(8) Freight-carrying motor vehicl ~s duly re- gistered and licensed in conformi t y with the provisions of chapter 301, RSMo, for a gross weight of six thousand pounds or less; * * * " (Except as otherwise noted, all statutory re- ferences herein are to the Revised Statutes of Missouri, 1959) If a vehicle meets the qualifications of the foregoing exception, it is obvious that it does not fall within t he regulatory authority of the Public Service Commission. The determinative issue, then, is whether a vehicle found on one occasion to have a gross weight in excess of six thousand pounds thereby loses the benefit of the ex- emption. More specifically, the issue can be stated as being whether the vehicle in question is "* * * licensed in conformity with the provisions of chapter 301, RSMo, for a gross weight of six thousand pounds or less; * * * " notwithstanding that it is found on one occasion to weigh more . Turning to chapter 301, the key statute appears to be Section 301 .070 which provides for the computation of licensing fees. Sub- section 4 provides: "Fees of commercial motor vehicles, other than passenger- carrying commercial motor vehicles, shall be based on the gross weight of the vehicle or any combination of vehicles and the maximum load to be carried at any one time dur- ing the license period." The "maximum load to be carried 11 referred to above is a forward looking term which connotes, to a ~reater or lesser degree, an esti- mate on the part of the applicant {See Section 301.020 (3) ), subject to the final determination by the Director of Revenue contemplated by subsection 5 of Section 301.070, which reads as follows: "The decision of the director as to the type of motor vehicles and their classifications for the purpose of registration and t he computation of fees therefor shall be f inal and conclusive." -2- ~~ loncl E. I . Hoc~ ~ l~y Inasmuch a s your •1Lh!:Jtion (2) , supN•, rtppArently c:mtemplates n sin~le instance of a violation of the 60l)0 pound limitation, it would not seem tha t such an instance shouln be h~ld to abrogate the qualification of tt1e vehicle for the Section 390 . 030 exemption . Although this r01nt nas not been ~pe~ifically ruled by any appellate court of Lhi .3 state, adequate r;u ida nee j s prov lded by Judicial opinions in analoe;ous case ..; for l h•! formulation of this opinion . For examplP- in State ex rel . Puhlic Service Commission v . Lor;an (1967) 411 ~ . W. :?d 86, the Publ j c Service Commission sought to collect certain statutory penalt1eG from the defendant upon the grounds that he had transported household goods in intra- state commerce for hire without first havin~ received a certificate of Authority from the Public Service Commission authorizing such operations . For purposes of the opinion, t.he allegations of the petiti on were taken as true and the Court ra id, 411 S . W. 2d 86, 88: "One \'lho makes a single isola ted movement of property from one point to another in this state on the public highway for hire does not for that reason alone ' engage in the business of a common carrier i n intrastate commerce .' He must hold himself out to the ~ eneral public to engage in the transportation by motor vehicl e of property for hire . * * * " Similarly , in City of Nevada v . Ba ~tow (1959) 328 S. W. 2d 45, the Kansas City court of Appeals considered whether the defendant's truck was liable to a municipal tax where defendant invoked Section 301.340 and clai med such truck was used exclusively outside of the City of Nevada . In ruling this point against defendant, the court regarded as significant the fact that " * * * In the operation of defendant ' s affairs the truck was regularly, not ~ust occasionallK , parked within Nevada when it was empty . * * * 11 3 8 S. W. 2d 45, 8 (Emphasis supplied . ) It may be inferred from this statement that an occasional parkinr, of the truck in the city would not have con- stituted a use within the city . Furthermore, our Supreme Court has recently had occasion to scrutinize the exemptions accorded by Section 390 .030 and concluded that they are to be applied to vehicles and not t0 the nature of the cargo hauled . State ex rel . Lee American Freight System, Inc . v . Public Service Commisolon, (1966) 411 S . W. 2d 190, 194- 195 . Hence , it would seem to follow that a vehicle licensPo fo~ a Rross weight of six thousand pounds or less would not necessaril y lose such exemption by virtue of the incidental fact that on one occasion it was loaded so a s to exceed such weight. This is not to say that the carrier and operator of the vehicle would be immune from prosecution for operating an improperly licensed vehicle . Moreover, if t he vehicle in question is regularly used for -3- Colonel E. I. Ho~knd~y carrying car~o which rauses the gross w cL~ht 1~ exceed the six thousand pound l imita t i:-:>n, the Director of Revenue is fully a u- thorized by Section 301.070- 5 to decLoc that the vehicle does not qualify for the less than six thousand r Ja:::.;sifi..cation and to r~qu ire computation of fee~ on the basis of a hi ~ her gross weight . If such authority were r;o c.:crr.ised, the vehicle \:ould no longer qualify for the exemption contemplated by Section 390.030 (8). With respect to question (3) you assume that a carrier, found to be violating th P. six thousand pound maximum secures a twelve thousand pound license . Thereafter: and during the same lic ~nse year, he relinquishes the twelve thousand pound license and secures another six thousand pound license in order to take advanta~e of the Section 390 .030 (8) exemption f rom Public Service Commissi1n rer,ulation . Assumint; t hat at lhe time he reverts to the lesser license " * * * the maximum load to be carried at any one time during the license period." pluR the weir;ht of the vehicle does not exceed six thousand pounds, Section 301 .070, the carrier would not be pre- vented from doing so in order to take advantage of the Section 390.030 (8) exemption . Although Section 301.030-3, RSMo Cum. Supp. 1967 , requires registration of commercial vehicles on an annual basis, it also permits the issuance of license during the year . Consequently, it is appropriate for an owner of a commercial vehicle to chanee the registration and licensine of the vehicle at any time when his contemplated use thereof changes . This w~uld include a revision of the licensing to authorize an increased as well as a decreased gross wei~ht . CONCLUSION It is therefore the opinion of this office that: (a) After an operator of a freight-carrying motor vehicle claiming the exemption from Public Service Commission regulation provided by Section 390.030 {8), RSMo, is apprehended with a gross weight in excess of tix thousand pounds, he may remove the excess weight and proceed without being in violation of Section 301 .070, RSMo, f or such continued travel . Although he is liable to prose- cution for having operated an improperly licensed vehi cle , the exemption of the vehicle under Section 390 .030 is not lost by reason of an isolated instance of operating a freight - carrying motor vehicle with a gross weight of more than six thousand pounds . {b) The licensing and registration of a commerci al motor vehicle may be changed from time to time to coincide with the use to which it is intended to be put. An owner having no further use for a license authorizing a gross t-.reight of twelve thousand p::>unds may re- linquish it and secure a license aut horizing a gross weir;ht not in excess of six thousand pounds . - 4- Colonel E. I . Hockaday The foregoinG opinion, which I hereby approve, was prepared by my Assistant, Albert J. Stephan, Jr . Att orney - 5-