Untitled Texas Attorney General Opinion ( 1947 )

Jan. 27, 1947
I&en. V. H. Sagebiel Opinion No. V-48
Cbunty Attorney
Gillespie County Re: Construction of Article
Fredericksburg, Texas 8,27a, Section 3(a), Vera-
nen’s Annotated Criminal
Statutes of Texas, Penal
4 ‘. , .”.i
Code, in reference to im-
plements of husbandry,
and highway building and
. maintenance machinery.
..
Dear Sir:
We are in receipt of your letter of January 14,, 1947, in
which you request the opinion of the department en the questions
contained in yeur letter which reads as follows;
“An opinion is requefted as to the interpretation
of the exceptions listed in Article 927a, Sec. 3 (a),
viz., ‘implementa of hu1badry . + I* aad highway
building dnd mafntenance machinery temporarily
propelled Q& moved upan t&u public highways.’
. “The situation we have involves the transpor-
tation on the public highways, on its own wheels,
of a privately-owned ten cubic yard power scraper
which is conceded to be more than 96 inches in
. .. . .. width, and which was transported for the purpose,,
of building privately-owned earth tanks, It is con- ‘.~
tended that the transporting was an acoamodatien
to the owners who are good customers of the firm ~
of which the defendapt is a member, and that the
defendant and his firm received no compensation
nor had any other connec,tion with the scraper than
its transportation; and further, that the scraper
comes within the exceptions above noted.
“A cut of a scraper similar to the one involved
is enclosed.”
.’ As we view your request, based upon the contents of
your letter (including the picture or cut of the power scraper),
two questions are presented.
.I
I
.
Hon. V. H. Sagebiel - Page 2 Opinion No. V-4g
1. Is the power scraper described an “implement of hus-
bandryq so as’to come within the exception regarding implements
of husbandry in Article 827a, Section 3(a), Vernon’s Annotated
Criminal Statutes of Texas, Penal Code?
2. Is the power scraper described “highway building and
maintenance machinery” so as to come within the exception re-
garding highway and maintenance machinery in Article 8270, Sec-
tion 3(a), Vernon’s Annotated Criminal Statutes of Texas, Penal
Code 7
Article 827a, Section 3(a)* Vernon’s Annotated Criminal
Statutes of Texas, Penal Code (as amended, Acts 1931, 42ad Legis-
lature, p. 507p ch. 282, Sec. 3), reads as follows:
“‘No vehicle shall exceed a total outside width,
including any load thereon, of ninety-six (96) inches,
except that the width of a farm tractor shall not ex-
ceed nine (9) feet, and except further, that the limi-
tations as to size of vehicle stated in this section
shall not apply to implements of husbandry, includ-
ing machinery usea solely for the purpose of drilling,
water wells, and highway building and maintenance
machinery tern ,raraly propelled or moved upox, tiie
public high&? (Emphasis ours)
The power scraper in questien is~ a large four-wheeled
scraper with dual tires on tht,re+r, more than ninety-six (96)
inches in width, and capable of moving ten cubic yards of earth
each time it is operated. It is drawn or towed by a full tract ve-
hicle or similar mechanical forcer Under the facts stated it was
moved over a highway onto private land for use in constructing an
earthen tank. Under the definition of “vehicle”” as defined by the
Legislature in Article 827a, supra, the scraper is a vehicle inas-
much as it is a m0 . 0 mechanical device, in, upon or by which any
person or propetty is or may be transported or drawn upon a
public highway . a .R See Commercial Standard Ins. Co. v. Mc-
Kinxey, 114 S. W. (2d) 33g (Tex. Civ. App. 1938).
The term “implementsof husbandry” has not been de-
fined by the Legislature in the particular statute in question.
Suck being true, and the intent remaining obscure after a reading
of tbe entire act, we may consider other laws and circumstances
indicating the legislative intention.
tex Co,, l2Q Tex. 166, 36 S. W, (2d)
Tsx.rim. Rev. 188. 170 S.W. 548
Revised Civil Statutes of Texas, 192’5, ai amended (Relist-n ..
and Regulation of Vehicles) , “implements of husbandry” are de-
.. fined as follows:
Hon. V. H. Sagebiel - Page 3 Opinion No. V-48
“(4 ‘implements’of husbandry’ shall mean farm
implements, machinery and tools as used in til-
the solI, but shall not mclude any passenger car or
m (Emphasis our~s)
Article 6687b, Section 1, Texas Revised Civil Statutes,
(Acts 1941, 47th Legislature, as amended Acts 1943, 48th Legisla-
tut) defines “implements of husbandry” as follows:
“(8) ‘Implements of Husbandry.’ Farm imple-
merits, machinery and toolsas, used in tilling the
soil, namely: cultivatdrs, farm tractors, reapers,
binders, combines, or mowing machinery, but shall
not mclude any autsmoblle or truck.” (timphasls
ours)
Ballentine defines “Implements of Husbandry” as follows:
“Anv instrument used directlv in the business
,of farming, and for no other purpose is an imple-
ment of husbandry. Horse rakes, gang plows,
headers, threshing machties, and combined har-
vesters are as clearly implements of husbandry
as are hand rakes, single plows, sickles, cradles,
flails, or an old fashioned machine for winnowing,
There is no ground for excluding an implement
from the operation of the exemption statute be-
cause it is an improvement, and supplants a farm
implement used with less effeativeness for the
same purpose. Estate of Klemp, 119 Cal. 41, 39
L. R. A. 340, 58 Pacr, Rep. 1062.” (Emphasis ours)
The Court of Criminal Appeals had before it in Reaves
v. State, 121 Tex. Crim. Rep. 488, 50 S. W. (2d) 286 (1931)r
question of whether or not a motor truck with trailer exceeding
forty-five feet in length and transporting baled hay, cotton and
feed stuffs, came within the exemption stated in Article 827a,
Section 3(a), supra. The court in halding that the truck did not
come within the implement ,of husbandry exception defined “im-
plements of husbandry” under the statute as follows!
I
. . . An implement of husbandry is something
necessary to the carrying en of the business of
farmmg, etc., wrthout whrch the work cannot be
done. 31 ,Corpus Jurrs, p. 256. (hmphasrs ours)
No other Case has construed the term ?implements of
husbandry” under the Article in question. The Supreme Court
of Texas in Allred v. J. C. Engelman, 123 Tex. 205, 61 S. W. (2d)
75 (1933) held that a water truck was an implement of husbandry
Hon. V. H. Sagebiel - Page 4 Opinion No. V-40
within the meaning ef Article 6675a-1 et seq., which was used for
transporting waer to a citrus farm, a& the Amarillo Court of
Civil Appeals in Bean v. Reeves, 77 S. W. (Zd) 737 (1934, Rehear-
ing Denied), held that a truck used exclusively in Oonnection with
the business of the owner’s farm and temporarily operating on
the highways in transporting the owner’s Cotton to the gin, and
farm products to market was an “implement of husbandry’ and
therefore exempt from registration fees. Both of these cases
arose prior to the amendment of Article 6675r-1 et seq., in 1741
when the Legislature added the definition of *implements of hus-
bandry” to the act, and they therefore throw no light on the deci-
sion of the question involved in this opinion.
We think it clear from what has been said, and especially
under the decision of the Court of Criminal Appeals in Reaves v.
State, supra, that the power scraper above described was not an
implement of husbandry” as that term is used in Article 8270,
Section 3(a), supra. The answer to the first question is therefore
in the negative.
We have been unable to find any case construing the
terms “highway building and maintenance machinery” as used in
Article g27a, Section 3(a), supra. It was said by the court in
Reaves v. State, supra, page 287, that:
”
. . i Recognining that of necessity some forms
of transportable machinery must move from one
place to another, and that over said highways, ex-
ceptions were inserted in the statute , , .*
*The permission of the exceptions here apperr-
ing extends no further than to the implement or ma-
chine itself when in form or sine violative of the
statute . . .*
It seems clear that the Legislature in using the term
“highway building and maintenance machinery* intended to dcsig-
nate a particular type of heavy machinery commonly used in the
construction andmaintenance of roads and hIghways as being ex-
empt from the operation of the statute where it was only tempo-
rarily moved over the highway. The Legislature evidently had in
mind that it was impossible to anticipate and describe by name
every heavy machinery wherle particular design would bring it
within the classification of “highway maintenance and building
machinery.a It seems evident that the purpese of the legislation
was to exempt from the prohibitioio of the Ptrtute all machines
of a type primarily designed for highway construction and mrin-
tenance, temporarily using the highways, when their size and
form brought them witbin the prohibitions. Compare Allred v.
Hon. V. H. Sagebiel - Page 5 Opinion No. V-48
J. E. Engelman, 123 Tex. 205, 61 S. W. (2d) 75 (1933).
It is important to observe that ~the statute does not qualify,
the term ‘highway building and maintenance machinery? by requir-
ing that the use of the machine be devoted solely to highway build-
ing and maintenance before It ~111 come w~thm the exemptron as Qie
Legislature saw fit to do with respect to.“machinery used solely for
the purpose of drilling water wells,” which appears as a part of the
same statute. (timphasis ours) It therefore follows, in our opinion,
that the term “highway building and maintenance machinery” was
used to designate 8 p8sticular type of heavy machinery and equip-
ment commonly used in connection with highway maintenance and
construction. The fact that the machine might; at times, be dedi-
cated to some other use does n&within itself eliminate it from the
clcssificrtion.
Webster’s New International Dictionary, Second Series, un-
abridged, defines the word.‘scr*per* in p8rt 8s follows:
“An apparatus drawn by horses or other means for
scraping up, transpo’rting and dumping earth in making
roads, canals, etc. . . The two-wheeled and four-
wheeled scrapers have a metal scoop, suspende~d from
an axle on wheels, that can be raised to clear the
ground after loading.” (Emphasis ours)
The picture and description of the power scraper under
consideration reflects th8t it is 8 type commonly seen in use today
by eonetruction companies in the building of highways, dams, arti-
ficial lakes, levees, and the such like. It is. true that the prrticular
power, morapei, equipped with pneumatic tires, bogies and other
modern mechanical devices is vrstly different from scrapers seen
.
m operation in the building ef reads ar+d general construction works
several years ago, but it seems evident that such was one of the
purposes of the Legislature in defining such machinery in general
terms so as to take care of constantly changing conditions and im-
provement in machinery of this type.
It is a generrl rule of statutory construction that in the
absence of a contrary indication legislative enactments which are
prospective in operation and which are couched in general and corn-
prehensive terms broad enough to include ~unknown things that might
spring into existence in the future, apply alike to new thing,*, coming
into existence subsequent to their passage where such things are of
the same class as those specified, and are within the general pur&
view, scope, purpo,se and policy ef the statute and the evident mean-
ing of the term used. 50 Am. Sec. 419, Zucrrro v, Strte, 82
Tex. Grim. Rep. 1, 197 L.R.A. 19198, 35-I PPlYinK
this rule of construction the legislative designation of “highway
Hon. V. H. Sagebiel - Page 6 Opinion No. V-48
building and maintenance machinery” would include a modern
power scraper equipped with pneumatic tires, bogies, and other
mechanical devices.
In answer to what constitutea a temporary movement or
propelling along the highway as contemplated by the statute, the
court in Reaves v. State, supra, said:
.
. . . if a farmer should desire to transport such
vehicle along the highways from place of purchase
to place of intended use, or from one place of use to
another. this would be the ‘temuorarv nronellms or
moving’ contemplated by -subdi&ion (6) quoted-
above, and would hence be permissible . , .” (Em-
phasis ours)
Based upen the above and foregoing, we are of the opinion
that the four-wheeled power scraper described is “highway build-
ing and maintenance machinery” within the meaning of Article 8278,
Section 3(a), supra, notwithstanding the fact that it was temporarily
moved over the highway for use in constructing an earthen tank on
private land. Our answer to your second question is in the affir-
mative .
SUMMARY
1. A large four-wheeled power scraper exceed-
&g ninety-six (96) inches in width, and capable of
moving ten yard8 of dirt in each operation, and used
in constructing an earthen tank on private land, held
not to be an “implement of husbandry” under the ex-
ceptions contained in Article 827a, Section 3(a),
Vernon’s Annotated Criminal Statutes of Texas.
2. A large four-wheeled power scraper exceed-
ing ninety-six (96) inches in width, and capable of
moving ten yards of dirt in each operation, which
was temporarily moved over a highway onto p*i-
vste land for uoe in constructing a privately owned
earthen tank, held to ,be “highway LuiIding and mrin-
tenance machinery” and within the exception con-
tained in Article 827r, Section 3(a), Vernon’s An-
notated Criminal Statutes of Texas, even though
temporarily devoted to construction of an earthen
tank rather than kighway building and maintenance..~.
You m-5 very truly,
APPROVED ATTO lRNEY GENERAL OF TEXAS
Assistant
CDM: jt: sl APPROVED-OPINION.COlvlMITTEE
BY BWB - CHAIRMAN